Legal Catch-22 for Witness
February 20, 2010 7:39 PM   Subscribe

Help me avoid this catch-22 as a witness at an unemployment appeals hearing?

I have been asked to participate in a conference call that is part of the unemployment appeals process for a former employee of the company where I work. Our company claims he was fired with cause and therefore not due unemployment. He, obviously, disagrees.

Although I was not directly responsible for this employees termination, his actions toward me were large part of the reason he was fired. I believe he still holds a grudge against me. I am worried that if I speak during the call anything I say could potentially open me for to a civil lawsuit from the former employee. On the other hand, if I don't testify, I'm worried that his appeal will be granted and the company will blame me for that. What are my options here?

If it matters, this is in the state of Florida and I am posting this on someone's behalf.
posted by IndigoSkye to Work & Money (11 answers total)
If you think this might be a serious issue, you should look into retaining a lawyer.

Here is the Florida Bar Association homepage. Just from browsing the page for a second, it looks like you can get an initial 1/2 hour consultation for $25.
posted by HabeasCorpus at 7:50 PM on February 20, 2010

What about the employee who was directly responsible for the employee's termination? Couldn't he or she participate in the conference call, and doesn't he or she have all the essential information about what occurred?

Also, IANAL, but if you had no control over the decision to fire the angry party, I'm not sure how you could be the subject of the civil lawsuit.

I agree that you should consult with a lawyer, if only to straighten out what you should and should not say during the call.
posted by sallybrown at 7:58 PM on February 20, 2010

I don't understandwhy you would participate in the call to begin with. Just decline and move on.
posted by dfriedman at 8:11 PM on February 20, 2010

IAN an HR professional & IANAL.

I don't think you should even be there. The termination was the company's decision and they should have the necessary documentation to back up their actions and to support or deny a former employee's unemployment insurance. Your name shouldn't even be in the paperwork submitted to the FL AWI. A typical document should read something like: "Employee was terminated for misconduct towards another employee." Etc. If there are any names submitted it should only be the terminated employee because he applied.

Again, IAN an HR professional, but I dabble. Get a lawyer with real know-how.
posted by CarlRossi at 8:29 PM on February 20, 2010 [1 favorite]

Ditto a lawyer or do not participate.

Your company should be able to handle this on their own.

Supply a sworn statement to anything factual if that will help them - Done and Done.
posted by jbenben at 9:23 PM on February 20, 2010

I don't think you'd need to worry about facing civil litigation due to your testimony. It's pretty common for states to have what's called a "litigation privilege" which insulates parties to a lawsuit, their attorneys, and the witnesses participating in the lawsuit from tort liability stemming from statements they made during the course of the proceeding. The rationale being that states don't want the fear your're expressing to prevent witnesses from testifying at trial (or in the case of parties, afraid to exercise their right to petition the courts for relief). Put generally, you can't be accused of defamation or slander based on things you say as a witness under oath.

I don't know if Florida recognizes this privilege, but I think it would be surprising if it did not. And most states that recognize the litigation privilege extend this privilege to participation in administrative hearings, as the underlying policies behind the privilege remain the same in this context.

Of course, if you're not worried about facing a civil lawsuit based on your testimony but instead worried about prompting a lawsuit based on something you've done prior to the hearing that the employee came to know of through your testimony, that's a different story (the privilege wouldn't extend to acts committed prior to testifying).

Before getting your own lawyer -- does your employer have a general counsel or a legal department you could speak with? or would they let you speak with their attorney (on their dime) regarding your concerns?

And I wouldn't worry about any failure to testify as being the reason why the unemployment claim may go against your employer. I suspect these administrative hearings are generally pro-applicant and thus favor the individual seeking unemployment benefits. Also, your employer should have sufficient evidence to support its claim that they terminated the individual in the employee file the employer has for this individual -- and if they don't have such documentation, their case is likely flimsy with or without your participation in the hearing. Not to mention that events outside your testimony / interactions with this individual could be far more important on the issue of the former employer's eligibility for benefits.
posted by herc at 11:04 PM on February 20, 2010

Best answer: I have been asked to participate in a conference call that is part of the unemployment appeals process

Who will be on this call?

Does the company have a paper trail of why they fired the employee? Is your name on it?

Certainly if this call involves anyone outside of your superiors and the company lawyers you should decline to be involved.

Even then if they already have a paper trail and are trying to cover their asses you should be very wary. On the other hand if they already do have a paper trail you should participate and only verify and repeat things that are already there.
posted by Tell Me No Lies at 8:57 AM on February 21, 2010

Response by poster: There is a paper trail from emails sent to a supervisor and human resources and yes, her name is on it. It is not the content of those emails that resulted in the termination, but rather how the employ reacted when learning about the emails that resulted in their termination.

Strangely the call is not with company lawyers, but with the Florida unemployment appeals board. The company hasn't been in contact at all other than saying that she must be on the call. I think the best advice is to only testify that yes, she did submit the two emails.

But what can she say when she declines to comment otherwise?
posted by IndigoSkye at 10:49 AM on February 21, 2010

I would go with:

"I don't have a clear memory. Everything I knew for sure I put into the emails."

I am very definitely not a lawyer or your friend's lawyer, but I believe it is highly probable that if this *does* turn into a civil matter your friend will be much better off the less that she comments now.
posted by Tell Me No Lies at 11:07 AM on February 21, 2010

Please, please consult with a lawyer who is familiar with the Florida unemployment appeals board before making any statements.
posted by sallybrown at 4:09 PM on February 21, 2010

Response by poster: In the end, we did speak with a lawyer and have been advised to only speak to the actual events of the day when the employee's actions resulted in his termination. Everything else we're to either respond with, you'll have to ask the accused or refer the question to the company lawyer.

Thanks for your help
posted by IndigoSkye at 7:29 PM on February 22, 2010

« Older Has it gotten easier for Americans to move to...   |   Should I be worried about my dropped, but working... Newer »
This thread is closed to new comments.