FairLaw Firm has a lot of experience with demand letters in the employment setting. We have sent out demand letters, responded to demand letters, and reviewed demand letters that our clients received but to which they never responded. Demand letters, while infuriating, should not be ignored.
There are a few things that you should do once you receive a demand letter from a former (or current) employee of your business. After you’ve read it and taken a few breaths, put it down for a second. There’s normally a big disconnect between how most business owners feel they treat their employees well, and most employees feel like they’ve been treated poorly at some time. You are totally justified in being frustrated, angry, and unappreciated, but this is business, and you need to treat this as a business matter. For the attorneys involved (or to be involved) it is a business matter, and for any Court or administrative agency, this will be treated as a business matter.
While it would be nice if the first thing you did after receiving a demand letter is to call FairLaw Firm, it’s more realistic to suggest that you immediately make sure that you preserve everything that you might need to mount your defense and everything that could be relevant to the case. Make sure that any phones, tablets, or devices are backed up so that you can retrieve any messages you may need. If information is stored on the computer, then make sure that information is saved and not deleted. Take the time and pull the employee file and scan it so that it does not get lost down the road. You should download any messages when possible, such as from WhatsApp, Slack, or Teams, and make sure that potentially relevant emails don’t get deleted automatically or intentionally. This list is not exclusive or exhaustive.
If you have an insurance policy for your business that covers employment practices liability (EPLI), then you should consider sending a copy of the demand letter to your insurance agent, the insurance carrier, or following the directions for making a claim. If you aren’t sure whether you want to make a claim or not, FairLaw Firm can help discuss the difference whether you want to make a claim, want to provide notice, or how to proceed with your insurance company.
There is a bright side with a demand letter, which is that you now have the potential to do a few things. Early on, you have the potential ability to convince your employee and the attorney that the case is not worth pursuing – legally, factually, or both. Maybe it makes sense to settle the case before either a lawsuit is filed or an administrative process is started – because you would save lawyer fees, because you can’t risk have a record of a lawsuit, or because it makes sense for some other reason. If it just makes sense to settle because it would be more costly, then you as the client get to make that decision or to pay for the fight for a strategic reason. When the numbers/amounts demanded and offered do not line up, then at least you can strategize a defense before any lawsuit or administrative proceeding commences.
At FairLaw Firm, we work with employers at every step of the way. We try and avoid workplace issues with employees through the creation of relevant documents (handbooks, agreements, and other materials), we counsel employers about situations to avoid future problems, and we help to engineer defenses once matters work their way to administrative or legal proceedings.
Our goal at FairLaw Firm is to serve as a resource to build and preserve your business. Litigation is now part of the business landscape in South Florida, and either avoiding or successfully navigating that landscape is where we can help. This blog post is not legal advice and is not intended to be a step-by-step guide for how to defend against a demand letter, but is instead intended to serve as a general outline for how we like to approach these matters in general. We do, however, tailor our response to each individual situation and client.