Q: A complaint has been filed against myself and the company where I worked at. Should I accept joint representation?
I received an email from Red lobster saying that a patron has filed a complaint with the Los Angeles Superior Court. In the complaint, the patron has asked for judgment against Red Lobster, the general manager, and myself for negligence, the Unrue act, and intentional infliction of emotional distress. In the complaint, as an African American, he took offense to when I said “Here you go boss” as I was serving him a drink. In the complaint, it is stated that before I said that, he was discussing with his friend at the bar about how African Americans are discriminated against by service staff when this is said. I’m hard of hearing and I didn’t hear this conversation take place, if it did. I didn’t say this in what I consider an offensive manner as that would be counterproductive when your income is based off tips. To me, it is similar to saying captain, sir, ma’am, bro, etc. There’s more but that’s all I’m a part of. Red Lobster has offered free joint representation. Should I accept it?
A: You should not hesitate to let Red Lobster have their attorneys represent you. As an employee who was working within the scope of your employment, they have a duty to provide you with a defense. You can bet they will have a good law firm retained for that purpose. You can start by preparing a chronological statement which reflects your memory of the events. Do that early on so you can preserve your recollection of the events in question. Your lawyers will thank you for that.
A:
First of all, Red Lobster hasn't offered you anything for free. As a corporation, they are obligated by law to defend all employees in any suit arising from the performance of duties by that employee. Next, Red Lobster wants to control the defense of this litigation for a number of reasons, they may want to hire top notch lawyers, or they may want to cut expenses, or they may even have insurance to cover this and they may be required to use the attorneys the insurance company uses. Red Lobster isn't doing you some great favor by offering to defend you too.
Good idea to write up a description but don't be too eager to give it to any attorney but your own. Do as much detail as possible, time of day, patrons in the bar, where he was sitting, amount of noise in bar, who he was with, did he react to your comment?
You need to read up on the law a little. Google "Unruh Civil Rights Act" and you will find Civil Code 52 et. seq. (means and following) Read about what this guy is claiming, and also read about what the statutory penalty is (Actual damages or $4000 whichever is greater). Red Lobster is probably going to settle with him asap.
You are entitled to a copy of the complaint and you should ask for one to be sent to you right away.
You are entitled to your own attorney, paid for by Red Lobster, this is called "Cumis counsel" you can have an attorney of your choosing that will be there to defend your interests. Because you are the employee that supposedly said the offensive/discriminatory remark, you probably have a conflict with Red Lobster, who would be glad to throw you under the bus if it comes to that. (not very likely, they will have insurance, and it depends how reasonable the Plaintiff is going to be) Since he is only entitled to $4000, you should see what his first demand is and what Red Lobster is going to do. This Plaintiff is not going after YOUR pocket, it is not deep enough.
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