What happens when an employee who is suing you dies mid-suit? Is the case over?

Not exactly.

For example, here is a situation in which a woman sued her former employer for violating the Family and Medical Leave Act. After the plaintiff initiated the action in federal court, she died. Did that end the case? No.

Indeed, Rule 25 of the Federal Rules of Civil Procedure specifically addresses the death of a party. What it says is that if a party dies and the claim is not extinguished, the court may order substitution of the proper party as long as the party or the decedent’s successor or representative files the proper motion within 90 days. Thereafter, the action proceeds in favor of or against the remaining parties.

In the FMLA case, the plaintiff’s attorney filed the necessary paperwork to have the deceased plaintiff’s daughter continue as the plaintiff on behalf of her late mother. Not only did the court grant that motion, but it later denied the employer’s motion for summary judgment. So, this case will head to trial.

Now, there’s another higher profile employment case where the plaintiff died. In Zarda v. Altitude Express, Inc., one of the LGBT employment cases pending before the U.S. Supreme Court, Donald Zarda died in a base-jumping accident in Switzerland, and his family continued to pursue the claim on his behalf.  The Supreme Court should decide the case next year.

So, if an employee sues you for allegedly violating some employment law(s), dead or alive, your business may be in it for the long haul.

“Doing What’s Right – Not Just What’s Legal”
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