Originally held on Tuesday, June 28, 2022 | 12:00 pm – 1:45 pm
Richard B. Friedman
Richard Friedman PLLC
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This program which is being presented by leading plaintiff and defendant employment litigators is perfect for in-house and outside counsel involved in litigation commenced by former employees in wrongful termination litigation matters.
Topics to be addressed include:
- Why The Program Title Is a Misnomer;
- Related discriminatory, contractual, and tortious bases of a wrongful termination claim;
- Best Practices in Preparation;
- Gathering Documentary Evidence in Preparation for Litigation;
- When to Send and What to Say in Litigation Holds;
- Selection of Venue: State, Federal, or Arbitration?
- Procedural Responses to Claims such as: (i) removal and (ii) whether to answer or file a motion to dismiss; and
- Best Litigation practices.
Program Fee:
$149 For Members | $249 For Nonmembers -
Steven Arenson
Arenson, Dittmar & KarbanBrian Heller
Schwartz Perry & Heller, L.P.Julia M. Jordan
Sullivan & Cromwell LLPKatharine J. Liao
Squire Patton Boggs (US) LLPGabrielle Levin
Gibson, Dunn & Crutcher LLP(Mr.) Ami G. Zweig
Weil, Gotshal & Manges LLP -
12:00 pm – 12:05 pm
Introductions & Program Overview
Richard B. Friedman12:05 pm – 12:15 pm
Wrongful Termination
i. No basis for such a claim in N.Y.
ii. People look for other basesWhat are the Bases for Claims Arising out of Terminations?
Discriminatory Termination in Violation of FederalState, and City Laws
i. Federal burden shifting analysis – McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)
ii. State and city prima facie case
1. Protected categories
2. Inference of discriminationiii. Examples of pretextual termination
12:15 pm – 12:25 pm
Retaliation Claims
i. What is considered protected activity? Includes Wage & Hour Law Violations
ii. There must be a causal nexus
iii. Termination itself could be the act of retaliation
iv. Must knowledge by corporation be actual or can it be imputed?
v. These are very commonly asserted employment-related claims12:25 pm – 12:45 pm
Whistleblowers
i. Sarbanes-Oxley Whistleblower provision
ii. New York Whistleblower Law
iii. False Claims Act
iv. Qui Tam ActionsConstructive Discharge Claims Can assualt and battery be the basis?
Breach of Contract
i. Default: All employees are at will.
2. Very narrow implied-in-law “professional exception” contractual exception to employment at-will doctrine – Weider v. Skala, 80 N.Y.2d 828(1992)
2. Implied Covenant of Good Faith and Fair Dealing
3. Third party beneficiary claims
ii. Fixed term contract – not commonQuasi-Contract Claims
i. Unjust enrichment
ii. Quantum meruit
iii. Fraudulent inducement to contract
iv. Promissory estoppelPossible Tort Claims
i. Physical torts are not recognized in employment context in NY
ii.Tortious interference with contract
iii. Defamation
iv.Intentional infliction of emotional distress12:45 pm – 1:05 pm
Preparing for Litigationa. Initial Client Interviews
i. Is the termination actionable?
ii. What is the proof?
iii. Is it in the best interests of the client to sue?
iv.Is there a viable defendant?b. Receipt of Demand Letter by Defendant’s Counsel
i. Identify relevant individuals
ii. Initial investigation
a. Did employee make any preemptive complaints?
b. Did employee make any preemptive accommodation requests?
iii. Pre-litigation holds
a. Preservation of ESI in anticipation of litigation
b. Determining proper subject matter scope of the hold
iv. Notification of insurer by company1:05 pm – 1:15 pm
Gathering Evidence and Information
i. Relevant documents:
1. Records of prior application complaints, employment and arbitration agreements, if any, witness interviews, personnel files, performance evaluations, compensation records, timekeeping records, emails and other ESI, voicemails, audio/video recordings, employee notes/logs, letters/emails of appreciation, and prior separation agreements, if any
ii. Other relevant evidence
1. Conversations with current and former employees and others
iii. The Investigation and Investigative Report
1. Who will conduct it?
a. Will it be priviledged
2. How?
3. Will report be relied upon in making an employment decision?
4. Will there be a formal report and, if so, will it be written or verbal?1:15 pm – 1:40 pm
Considerations in Bringing Claims: Courts or Arbitration?
a. Enforceability of Arbitration Provisions
i. New law prevents employers from enforcing pre-dispute arbitration provisions and class action waivers covering sexual harassment or sexual assault claims
ii. Existence of forum selection clause
b. Any Benefits to Arbitration for Claimants?
i. Confidentiality?
ii. Allocation of costs
c. Disadvantages of Arbitration to Employers:
i.Possible speed of adjudication
ii.Power of arbitrator – could award large damages and decisions are rarely overturned by courts
iii. Limited ability to get dismissal or summary judgment
iv. Perceived tendency for FINRA arbitrators in particular to “split the baby”
v.Costs borne by the employer
d. Advantages and Disadvantages in State or Federal Court
i. Differences between city and state law, on the one hand, and federal law (decided by a judge), on the other hand, re: emotional distress damages
ii. City law is more liberal than federal law re: punitive damages1:40 pm – 1:45 pm
Responding to Claims
a. Considerations in Removal of a State Court Case to Federal Court
b. Considerations in Whether to Answer or File a Motion to Dismiss
c. Motions to Dismiss Often Do Not Resolve these Cases Because These Claims Are Fact-Based
i. Unless there is a timeliness issue, i.e., employee failed to meet an explicitly written deadline to do something
ii. Dismissals are generally with leave to amend -
New York: 2.0 Skills
New Jersey: 2.1 General
California: 1.5 General
Pennsylvania: 1.5 General -
Sponsoring Association Committee:
Labor & Employment, Tracey Salmon-Smith, ChairSponsorship Opportunities are Available! Please Contact:
Yelena Balashchenko, Manager, Business Development & Sponsorships | (212) 382-6608 | ybalashchenko@nycbar.org