When an employee files a claim against the company alleging harassment, discrimination or retaliation, those claims are usually centered around one or several senior level managers and executives, and now, even extend to board members with specific knowledge of the case. In most instances, these claims focus on the acts of a direct supervisor or their managers and allege that the manager has engaged in some behavior that is prohibited by the law, and hence, exposes the company to liability for that manager’s actions. Now, knowledge of illegal activity and inaction to correct the situation despite having the authority and power to do so will expose you to liability.
If you happen to find yourself in the “hot seat”, you should consider getting separate legal counsel to make sure that you understand the process, your exposure, your rights, and ultimately, the negotiate your exit.
Here is why:
1. There may come a point where the company’s interests diverge from yours. The company attorney, who has been guiding you and the company, will remain as the company attorney but may not necessarily be advocating for your position or your best interests. This is especially true if you are also a named party in the action and are represented by the company lawyer. While you don’t need separate litigation counsel, it's important to know what the issues are and where the parties’ interests may diverge. It is important to have your own "hired gun" to make sure that your job, career and reputation are protected.
2. The company may decide that it needs to take a strong stand against you with respect to the allegations raised against you. As we saw with the wave of terminations following the start of the #MeToo movement, you are likely to end up as collateral damage in the company's efforts to protect itself. You are entitled to defend yourself against the claims being raised, and in the worst case scenario, to negotiate your exit from the company in a fair, equitable and confidential manner. While your future with your current employer may be shaky, you have to make sure that you will be able to move on to your next position and preserve your career and professional reputation.
3. And finally, consider the high profile cases involving numerous high profile employees of large companies who have been accused as a part of the #MeToo movement. Now, claims can be asserted against senior level managers, directors and board members for their knowledge of the illegal behavior and failure to stop same. These claims were asserted by a Google employee who sued Google’s holding company, Alphabet, Inc. because leadership was aware of ongoing sexual harassment and allowed same to persist, creating and contributing to the hostile work environment. The complaint alleges claims against the holding company’s board members who were aware of the sexual harassment and approved over $90 million in severance packages for an employee who resigned under a cloud of sexual harassment complaints. If you happen to serve on a corporate board or as a senior executive with specific knowledge of illegal behavior at the company, you are now in the “hot seat” even if you did not commit the alleged acts. You may find yourself named individually in a lawsuit or the focus of allegations contained therein.
The Bottomline: If the other side or even your side has a lawyer, you should have one too. If you are a senior level employee, in the c-suite, on the company board, or the target of the allegations, make sure you receive independent legal advice, separate and apart from the company lawyer to make sure that you are protected.