In-house lawyers obviously can play an important role when their corporate clients decide whether to terminate employees. But they should avoid being the ultimate decision-makers, or playing a business role in any termination decisions.
In Price v. Jarett, No. 8:15CV200, 2017 U.S. Dist. LEXIS 61066 (D. Neb. Apr. 21, 2017), terminated employee plaintiff sought to depose a Union Pacific in-house lawyer. The lawyer had served on a panel that another witness testified "would have to come to a 'unanimous consensus to move forward on [a] termination.'" Id. at *2 (alteration in original) (internal citation omitted). Union Pacific claimed that the panel did not meet as a group to decide on terminations, and that the lawyer's "role in evaluating Plaintiff's termination was solely to review whether there were legal implications of concern for Union Pacific." Id. But the court allowed the deposition to proceed, noting that the testimony "regarding the need for unanimous consent for termination indicates that [the lawyer] may have some non-cumulative, non-privileged factual information relevant to the case." Id. at *6.
In-house lawyers should assure that their clients do not face a similar circumstance – in which there is (as the Price court put it) "uncertainty surrounding the 'hat' [they are] wearing while serving" on such panels or in some other way involved in termination decisions. Id. at *7.