Tips to Assist EPLI Claims Personnel in Performing Early Assessment of Cases Involving Employment-Related Claims

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A. INFORMATION TO BE AWARE OF IN EVALUATING THE EMPLOYMENT-RELATED CLAIM WITHIN THE FIRST 30 DAYS OF RECEIPT OF THE CLAIM

1. NATURE OF THE CLAIM:

• Are the eyewitnesses credible and independent?

• What really happened?

• Documentation issue?

• How sophisticated are/is the insured and employees involved?

• Is this a fact-intensive claim?

o Can the case be positioned for a summary judgment?

o This may affect the value of the claim-it may be if a motion for summary judgment would be successful, it may get plaintiff to discuss settlement early.

o If not, do not waste time, effort and money on a motion for summary judgment because plaintiff’s counsel knows if the motion is a loser.

2. SCOPE OF DAMAGES:

• Is plaintiff a wage earner?

• Back and front pay can be huge, so what are the back and front pay amounts?

• Is the plaintiff is a CEO, President, Vice President, etcetera – if so it may be tough because these people have a harder time getting a job and thus the limited pot of money (low policy limits) is eaten up quickly with high front and back pay claims.

• If someone is making a lot of money, that is definitely a factor to look at in evaluating the claim.

3. NATURE OF CLAIMANT:

• Is the Complainant a serial complainer?

• Usually the employer will know if the plaintiff is a serial complainer.

• Does the claimant complain a lot?

• Usually the jury hates these complainers.

• Do they have a history of claims?

• Ask co-workers regarding lawsuits by the claimant (against this or prior employers).

• Evidence of prior employment lawsuits help lower the value of the claim for mediation purposes.

• Is the plaintiff a low wage earner-smaller back and front pay?

• Low wage earner probably can find employment and, if not, they are probably not looking for work.

• Migratory work pattern?

• On the other hand-good reviews, pay increases, promotions and now adverse action? Why? Jury will pick up on this.

• Often happens with sale of company and new owner does this to the old employees. Raises a red flag.

• Despite the employer’s excuse for termination-the jury will not buy it because you let the employee go because they were a high wage earner and because they had been there a long time. Chances are these people won’t find a comparable job making the damages potentially higher.

4. NATURE OF BAD ACTOR:

WHAT IS YOUR SENSE OF THE PERSON WHO ALLEGEDLY DID THE BAD ACT?

• Do you need to check for your wallet every time you meet the alleged bad actor?

• What is the position in the company of the bad actor?

• Is he the owner, CEO, President, Vice President or manager-this takes on a different tone versus a co-worker or supervisor.

• Are they credible/forthright?

• Are they being evasive?

• How will they come over with the jury?

• Is the bad actor willing to shade the truth or lie?

• The case may be weak/marginal but if the bad actor appears to be or is a liar it drives up the price/value of the claim.

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If you have questions or would like to discuss the implications of this report further, please feel free to contact Ronald L. Wisniewski at Cray Huber Horstman Heil & VanAusdal LLC, 303 West Madison, Suite 2200, Chicago IL 60606; 312-332-8824; rlw@crayhuber.com.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ron Wisniewski, Cray Huber Horstman Heil & VanAusdal | Attorney Advertising

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