It’s Wednesday afternoon and you get an email from a service that receives lawsuits on your behalf.

“Congratulations! You are the recipient of a new lawsuit!”

No, it doesn’t really say that.

Rather, it’ll basically attach a copy of the lawsuit and remind you that the clock is ticking for a response.

It might as well add: “Good luck”.

But alas, all is not lost if an employment law lawsuit (like a discrimination claim or restrictive covenant lawsuit) is filed against you.

There are several concrete steps that you can and should consider.  Hopefully, most of this list will seem obvious to you but I’ve learned over the years never to make assumptions. Some companies think that ignoring a lawsuit is the best strategy.

Trust me — it’s not.

So, in no particular order, here are a few concrete steps that you can take:

  1. Talk to your in-house counsel. This is an obvious one if your company has an internal counsel. But many companies still do not.  If you are that in-house counsel, then you can check this box off fairly easily. But it leads to an obvious next step.
  2. Consider talking to your outside counsel.  This, of course, is also easier said than done if you have a counsel who has expertise in this area.  Suppose, however, that you do not have a person that your regularly call on — what then? Well, there are a few paths to follow. You can ask around for someone; that has its positives and negatives (too many to go into).  You can research some on sites like Chambers (also with pros and cons). Or you can wait for one to be appointed to you if you have insurance on such claims. Whatever path you choose, don’t wait on this because time is not on your side.
  3. Determine if you may have insurance on such claims and if you do, notify your insurer ASAP.  Some employers have Employment Practices Liability Insurance (EPLI) which gives them some protection from discrimination claims (subject to a variety of exclusions).  EPLI policies vary greatly; you might have a high deductible for example, or you may get a voice in your selection of counsel.  But regardless, you’ll want to know what your options are as soon as possible and many of the policies are “claims made” policies which means that they only will cover the claims that are reported to them from the time of reporting.
  4. Start preserving documents.  Court rules require parties to preserve certain relevant documents upon being put on notice of potential claims made against a party.  While a discussion with a lawyer will help to better define your particular obligations, at a minimum have a quick call with your IT department to make sure that any automatic deletion programs are suspended so documents don’t get automatically trashed.
  5. Minimize communications via e-mail, chat and text messages.  Unless you’re an attorney or communicating WITH an attorney, your communications with others may not be privileged. As a result, if you are the CFO of a company and you text the CEO with a message such as “I was worried we would get a lawsuit like this; not sure the supervisor followed our procedures”, that message can come back to haunt you with a vengeance. Resist the urge to communicate immediately or if you do, keep it to phone or video conversations.

This also applies to complaints filed with an administrative agency. Those will need to be responded to.

Lawsuits don’t need to be scary. But they also shouldn’t be ignored either.  Take action immediately to ensure that your company’s interests are protected.  You may only have a few weeks to respond.