Employment-law intakes

Basic questions to ask when a potential employment client calls your office

2023 March

Has the following happened to you? You get a call from a potential client (PC) saying they have a “wrongful termination” claim or a “hostile workplace” case? Do you immediately refer the PC to your plaintiff-employment friend, only to hear back that there was no viable case? Do you want to know why?

I usually start the intake by asking the PC what happened. The PC will give me a story that may or may not make sense. I will listen for a few minutes to let the PC vent and then start asking questions. Some lawyers have their administrative staff ask a list of questions. I prefer to do the intake myself to get a feel for the PC, their demeanor, and how they respond to questions. I am evaluating the potential client for their credibility. Do I like this person? Do I believe them? Are they evasive? Have outsized expectations? Go with your gut. When in doubt, I pass on the case.

An intake could go like this:

Q: Hello, is this Mr. James?

A: Who is this?

Q: My name is Ely Grinvald. I am an employment attorney. You were referred to me by attorney Jack.

A: Oh, yes. I have a hostile work environment situation. Me and my boss don’t get along. My boss is an asshole. He treats me differently than all the other associates at the store. What can I do?

Q: Where do you work?

A: I don’t want to say. I just want to know my rights.

Q: Are you currently employed?

A: Yes.

Q: How big is your employer?

A: It’s a big store.

Q: Why do you feel you are being treated differently than other associates in the store? Is it because of your ethnicity, race, sexual orientation, disability, or another protected characteristic?

A: My boss just doesn’t like me. He is friends with the other associates.

Q: Has your pay been reduced because of how your boss treats you?

A: No.

Normally, I would cut off the intake after PC said “I just want to know my rights.” That is a sign that a potential client is fishing around for free legal advice and has no interest in hiring you or any attorney.

In my experience, people who are currently employed are much less likely to sue their employers than employees who have been terminated. Also, a potential client who is not willing to tell you where they work is a red flag. You want a client you can trust, not someone who is unwilling to share basic information.

Finally, this PC cannot explain how he has been treated differently than other employees. There is no cause of action for “hostile work environment” related to a protected category or “my boss is an asshole.” There is a cause of action for discrimination or harassment based on protected categories under the Fair Employment and Housing Act (FEHA). Some protected categories include ethnicity, race, sexual orientation, disability, age (over 40), medical condition, etc. (Gov. Code, § 12940, subd. (a).)

“At will” employees and wrongful termination

Let’s say a PC calls your office and says that they were wrongfully terminated. Do they have a case? We know that the PC is no longer employed. What makes the termination wrongful? I ask PCs the company’s stated reason for their termination and why they believe the company terminated them. Since California is an “at will” state, employees can be terminated for any reason unless it is illegal. Employees can also quit at any time. Exceptions include employees who signed a contract with their employer changing the “at will” status. Most potential clients calling your office will be at-will employees. Hourly employees are almost always at will. You want to know the reason for their termination, any witnesses, and evidence that supports their story.

For example:

PC: Hi, I was fired by Company X yesterday. Do I have a case for wrongful termination?

A: Why do you believe your termination was wrongful?

PC: They can’t just fire me like that, can they? I was a great employee. Not a single write-up in the two years I worked there.

A: You know that California is an at-will state, right? You can be fired for any reason and you can quit for any reason. What reason did Company X give when they fired you?

PC: They said I abandoned my job.

A: Can you elaborate on that, please?

PC: I went out on medical leave. I needed to have my medical leave extended. Company X needed me back, but I had restrictions. Company X said I had to be 100% healed. I was not 100% healed. Company X sent me a letter saying I refused to return to work and had abandoned my job, therefore I was terminated.

Rarely will your intakes be as straightforward as this one. In a potential wrongful-termination case you are looking for evidence that the employer violated some law, preferably the FEHA or another statute that provides for attorneys’ fees. A wrongful termination cause of action does not provide for attorneys’ fees. FEHA cases do provide for attorneys’ fees. (Gov. Code, § 12965, subd. (b).)

How long was the PC employed at the company? The longer, the better. The shorter the length of employment, the more egregious the company’s conduct should be for the case to be worth your time. This may not apply for wage-and-hour violations because the penalties add up fast.

The credible plaintiff

How credible is your future client? How long were they employed at prior jobs? Have they sued their employer before? Do they seem litigious? All questions for you to decide. Some attorneys ask potential clients if they have a criminal record or if they have filed for bankruptcy. Is the spouse or mother calling for the potential client? Why? I always want to speak to the potential client, preferably alone. Any PC who is abusive is an immediate red flag. Same with people who will not return my calls within a reasonable time.

Other key facts to consider: How big is the company? Some lawyers only sue publicly traded companies or employers of a certain size (50-100+) employees. Such employers will have the money to pay a judgment and will hire attorneys who know employment law. Nothing worse than dealing with a jack of all trades solo practitioner who thinks they understand employment law. Nothing against solo practitioners who practice “door law,” but you want to deal with experienced defense counsel who know how to value a case appropriately.

How many employees in California? Not just at potential client’s location, but in other locations, if they exist. You want a rough number. Also, while doing the intake, I ask PC for the name of the company as it appears on their paystubs. I then look up the company on the California Secretary of State’s website: https://bizfileonline.sos.ca.gov/search/business. You want to sue a company that is in good standing with the California Secretary of State. Red flags are if the company is suspended by the FTB or if a Labor Commissioner judgment has been recorded against the company.

Number of employees matters for FEHA purposes, too. FEHA covers all companies with five or more employees, full or part time. Sexual harassment protection applies if the company has one employee. If your PC works for a company of two (owner and PC), FEHA applies. You can find out number of employees by searching PPP loan data. I usually do not litigate cases against very small employers because it’s not cost effective. If it’s a wage-and-hour case, you could refer the potential client to the Labor Commissioner or an attorney who handles claims before the Labor Commissioner. Note that the Labor Commissioner does not help enforce the wage judgments it issues.

The most important part of your intake are liability and damages. To do it right you need to be familiar with the causes of action that arise in employment law. I did my early FEHA intakes with James Publishing’s California Causes of Action next to me. It breaks down the most common causes of action into elements with case cites. For discrimination and harassment cases I ask potential clients what happened to them and steer the conversation towards the elements of each cause of action. You want to find out dates when the alleged harassment or discrimination occurred, potential witnesses, and any documents proving the PC’s claim. For example:

Q: Can you tell me what happened?

A: I was discriminated against because of my medical condition.

Q: Can you be more specific, please?

A: My boss made fun of me because I needed to use the restroom often.

Q: What is your medical condition if I may ask?

A: Fibromyalgia.

Q: When were you diagnosed?

A: In 2010.

Q: When did you let your boss know? How?

A: I told him in person and sent an email.

Q: When did you send him an email? This is very important.

A: I don’t remember but probably in 2012?

Q: Did you ever tell HR about your condition?

A: Yes.

Q: How? When?

A: By email around the same time.

Q: Did your doctor give you any notes or restrictions?

A: Yes, my doctor gave me a note that said I need to take breaks every hour to use the bathroom.

Q: You gave the note to your supervisor? Any reaction?

A: He took it and laughed at me.

Q: Any witnesses to his laughter?

A: Yes, my best friend Jamie.

Q: Are you still in touch with Jamie?

A: Yes, but she still works at the company and does not want to jeopardize her job.

This conversation establishes a number of important points. One, the employer was on notice of PC’s medical condition because PC gave the supervisor a doctor’s note. Two, the doctor’s note is a request for a reasonable accommodation. Three, the supervisor mocked Plaintiff’s request. Four, another employee witnessed the supervisor’s behavior and can be deposed later.

The timeline

Sometimes I have potential clients write a timeline of events for me. The timeline helps organize the events in my mind and is also a test of the PC’s commitment. If the PC does not write the timeline, how will they be able to respond to discovery? I send the sample timeline out after I have vetted the case and think it’s worth pursuing further. The timeline becomes my fact section for the complaint after I edit it. I got this from the Internet. Credit to whoever came up with this.

As we discussed, please prepare a brief timeline of important dates using the following example:

01/01/2012: Hired by Company, Inc. as Position #1

06/01/2012: 1st performance evaluation: Overall “Exceeds Expectations”

01/01/2013: 2nd performance evaluation: Overall “Exceeds Expectations”; Promoted to Position/Title #2

06/01/2013: 3rd performance evaluation: Overall “Exceeds Expectations”

06/21/2013: Submitted doctor’s note – no lifting more than 5 pounds for a 1-month period

06/28/2013: Write-up and suspension (first ever at Company, Inc.)

07/02/2013: Terminated

I do not need exact dates. Approximate dates will work.

Some potential clients will already have timelines prepared and will offer to send them to you, along with emails the potential client claims supports their case. That’s usually a sign that the PC is lawyer shopping. At the intake stage, I do not want to review too many documents. I am mostly interested in the facts to determine if a prima facie case exists and to estimate potential damages.

I also ask PCs if they have an attorney and if they have obtained a Right to Sue from the EEOC or California Civil Rights Department (formerly the DFEH). You want to know this information because (a) you will have to obtain a Right-to-Sue before filing and lawsuit and (b) once a Right-to-Sue is obtained, a clock starts ticking, giving you limited time to file a lawsuit (90 days in federal court for EEOC Right-to-Sue. One year in state court for Civil Rights Department Right-to-Sue).

 If a PC has obtained a Right-to-Sue, you will probably have to do another one. It is very important to check every box you think applies and list every defendant, company or individual. Better to be overinclusive than leave something out. Opinions vary on how much information to include in the description box. I tend to be minimalist. Contact me and I will send you a sample. Some firms put the entire fact section into the description. I think that’s overkill.

Clients with prior attorneys: I am wary when a potential client tells me that a lawsuit has been filed already and he/she/they is looking for another attorney to take over, especially if discovery has been done in the case. I always ask for the reasons the potential client is dissatisfied with the other attorney. I also ask for the case file or, at the very least, the complaint. I also check the case docket. If I do take over a case already in litigation, it’s in the early stages.

Deadlines: Three years for FEHA claims to file with the Civil Rights Department. Three years for wage-and-hour claims, maybe four. Two years for wrongful termination after the last adverse employment decision aka last bad thing that happened to PC at work. This gets tricky. I usually ask, “When were you terminated” or “When was your last paycheck?”

So far, I have discussed mostly discrimination, harassment, and wrongful termination claims. I have not covered public entity (federal, state, or local) employees because I do not represent them. Strict timelines apply to bringing claims for public entity employees, especially federal employees.

Wage-and-hour claim evaluation

I ask other questions to evaluate wage-and-hour claims. I ask PCs to send me copies of several recent paystubs. I also ask questions about overtime, meal and rest breaks, and how they were paid. For example:

Q: Where did you work?

A: A big supermarket in the Valley.

Q: How many hours per day did you work?

A: Sometimes 9, sometimes 10.

Q: How many days per week did you work?

A: 5-6 days per week.

Q: Did you clock in? How?

A: We wrote our time on a piece of paper when coming to work and when leaving.

Q: Did you get paid overtime?

A: Yes.

Q: Did you get paid time and a half for any hours worked over eight per day?

A: No, they paid us at our regular rate for all hours worked.

Q: What was your regular rate?

A: $17/hour.

Q: How were you paid? Cash? Check?

A: Cash

Q: Did you get paystubs?

A: No.

Q: Did you get lunch breaks?

A: Yes, but we had to work during them.

Q: Were you able to take your lunch breaks without interruption?

A: No.

Q: What about rest breaks? Did you get any?

A: No rest breaks. We could go to the bathroom if we needed to.

Q: How many employees worked at the supermarket like you?

A: Maybe 30-40.

The above exchange covers the basics. I don’t do class actions and will not cover the questions you would ask to determine if the case might have class-action potential. Assuming the defendant employer is collectible, I ask about the number of employees to decide if this could be a PAGA case. PAGA (Private Attorneys General Act) allows aggrieved employees to recover penalties on behalf of themselves and other employees who suffered Labor Code violations. Aggrieved employees are defined as those who experienced (suffered) Labor Code violations. You can find articles about PAGA in the Advocate archive (www.advocatemagazine.com).

The questions asked in the above intake go to specific causes of action: Was PC paid time and a half for every hour worked over eight hours in a day? No. That’s a violation. He was paid in cash with no paystubs. Another violation. Meal periods (lunches) were interrupted. Also a violation. No rest periods. Violation. I am happy to send you a list of questions you can ask a potential client and which documents you should request. I also have intake questions for FEHA cases.

Employment law is a fact-intensive practice area. Feel free to reach out with questions or comments.