Maintaining confidentiality

The employee plaintiff should not communicate with others about the lawsuit

Every experienced plaintiff employment lawyer can tell a horror story about how at least one of his or her cases was defeated, substantially weakened, or settled for far less than it was worth because the plaintiff employee communicated with others about his or her lawsuit.

For example, this can happen when the plaintiff employee tells a “close friend who would never tell anyone else” that the plaintiff employee:

  • Is too afraid to actually sue and that if the defendant employer refuses to entertain a pre-litigation settlement, the employee will walk away.
  • Hopes the defendant employer never learns that the plaintiff employee previously settled two other cases for sexual harassment against other former employers.
  • Is willing to drop his or her lawsuit for “X” amount of money (a sum considerably less than the sum at which his or her lawyer values the case).
  • Just settled the case for “X” but the friend should not tell anyone because he or she signed a confidential settlement agreement.

A common problem with respect to what the employee plaintiff should tell others occurs in the context of job searches. Recognizing that employers don’t want to hire someone who has made claims against his or her former employer, most plaintiffs are reluctant to say that they were fired for complaining about discrimination or that they resigned due to harassment on the job. Instead, they provide some other reason for the termination of their employment. Defendant employers seize on this to argue that the employee wasn’t discriminated against or harassed. This problem shows the importance that the employee plaintiff not lie.

Cases can also be ruined when the employee plaintiff communicates using unsecured methods of communication. For example, sending or receiving e-mail from an employer-provided e-mail account allows the defendant employer to read those e-mails. Similarly, sending or receiving faxed documents on the employer’s fax machine will inevitably result in some unauthorized person reading those documents.