By Stuart T. O’Neal III, Esquire and Anne Schmidt Frankel, Esquire
Allegations of sexual assault. Violence in the workplace. Claims of professional misconduct. These incidents can have immediate and irreversible consequences and require a swift and decisive response.
From large publicly-traded corporations to local school districts, in today’s world, all types of organizations need to be prepared to respond to sudden crises. Whether lives are on the line or your organization’s public reputation is at stake, developing a crisis management and rapid response plan is crucial to avoiding unnecessary, irreparable harm.
Rapid Response for Crises with the Potential for Significant Liability Exposure
When facing a crisis with the potential for substantial liability exposure and reputational damage, a rapid response is a critical early step in the crisis management process. This rapid response should be multi-faceted, highly-structured and carefully tailored to the specific circumstances at hand. Below are three steps to take as part of your rapid response plan.
1. Collecting and Preserving Critical Evidence
Regardless of the specific events or allegations involved, a crucial aspect of rapid response involves securing any potential evidence as quickly as possible. Depending upon the circumstances, this step may include:
- Taking photographs at the scene of the incident, altercation or accident
- Collecting and preserving relevant documents that are not required to be maintained in their existing condition and location
- Conducting a forensic examination of the scene and any other potentially relevant locations
- Securing telephone records and video surveillance footage
- Obtaining electronic medical monitoring data
- Conducting blood alcohol concentration (BAC) or drug testing
In order to avoid allegations of destroying or concealing damaging evidence (or other impropriety), the evidence collection and preservation process should generally be handled by individuals outside of the organization. Engaging outside counsel and forensic investigators will also help ensure that key pieces of evidence are not overlooked and that the organization’s personnel will not have to take the stand in order to have the evidence admitted at trial.
2. Identifying and Evaluating Potential Witnesses
In addition to collecting evidence, it is also important to quickly identify any potential witnesses. These witnesses should be interviewed promptly in order to obtain their present-sense impressions, and it will be necessary to examine their credibility in order to assess the viability of using their statements or testimony in future proceedings.
3. Assessing Exposure and Executing a Response Plan
It is also important to conduct a preliminary assessment of the potential for litigation. This includes the potential for private civil litigation as well as legal or regulatory enforcement action involving state or federal authorities. This task must be undertaken with the involvement of legal counsel – not only to ensure an accurate risk assessment, but also to ensure that relevant communications are protected by the attorney-client privilege. Rapid response counsel should also be engaged to assist with matters such as:
Serving as Liaison with Insurance Providers
When dealing with the organization’s insurance carrier, appointing legal counsel to serve as liaison can ensure that communications remain privileged, help shield the organization against a reservation-of-rights investigation, and preserve the organization’s aggregate coverage in the event of an anticipated delayed claim.Assessing and Addressing Conflicts of Interest – Depending upon the circumstances involved, crisis situations can potentially create conflicts of interest between organizations and their employees, directors and trustees, and outside investigating agencies. If a conflict exists, it must be addressed promptly and appropriately in order to stave off unnecessary issues in any ensuing litigation.
Handling Employment-Related Issues
For crisis situations involving allegations of sexual harassment, workplace violence, and other forms of employee negligence and misconduct, responsive employment action may be necessary as well. This action may include taking corrective or disciplinary measures, enacting a zero-tolerance policy, issuing notice(s) of termination, and representing the organization’s interests in unemployment proceedings.
Implementing and Evaluating Remedial Measures
Often, implementing remedial measures will be a critical component of crisis management. If remedial measures are necessary, legal counsel should be engaged to assist with implementation and to evaluate the effectiveness of the remedial measures post-implementation.
Dealing with Outside Investigating Agencies
In situations involving government investigations, legal counsel should be engaged to correspond with investigators on the organization’s behalf, to ensure that any reporting obligations are satisfied, and to take any formal legal action necessary to protect the organization’s interests during the investigation or in subsequent proceedings.
Crisis Management: Protecting Your Organization’s Right to Insurance Coverage
Insurance coverage often plays a central role in the resolution of private civil claims arising out of crisis situations and, in many cases, organizations will be required to notify their liability insurer of potential claims. Circumstances that will typically trigger an obligation to notify an organization’s liability insurer include:
- Formal and informal complaints from clients, patients, students, employees, family members and other individuals (including complaints submitted by these individuals’ attorneys);
- Occupational Safety and Health Administration (OSHA), Equal Employment Opportunity Commission (EEOC), and other agency investigations;
- Breach of an internal policy or procedure that triggers a mandatory internal investigation;
- Demands for financial damages or relief; and,
- Threatened claims or litigation against the organization or its personnel.
Additionally, in some circumstances it may be advisable to provide notice to the organization’s insurer even if notice is not contractually required. This notice can be especially important if the policy is nearing expiration and providing notice may be necessary to ensure coverage of future claims. In any case, when dealing with the organization’s insurance carrier, extreme care must be taken to ensure that any statements made do not jeopardize the organization’s coverage. Interacting with the insurance carrier is a task that is generally best handled by the organization’s legal counsel, and it will often be necessary to coordinate notice to the organization’s insurer with other aspects of the crisis management and rapid response process.
Contact the Burns White Rapid Response Team
The Burns White Rapid Response Team serves as front-line defense and provides emergency legal support to organizations facing crisis management scenarios. If you have questions about your organization’s needs or risks and would like to speak with an attorney, call 412-995-3000 or contact us online for a confidential consultation.