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Employer Counterclaims to Employee Lawsuits

by | Nov 30, 2022 | Employment Law |

Recent trends show that employers are filing counterclaims against employees who sue them for harassment, discrimination, retaliation or other employment-related claims.  These claims typically center around the alleged violation of a company policy or a restrictive covenant contained in an employment contract.  

If you are terminated or forced to separate from your employment due to harassment, discrimination or retaliation in the workplace, you must be very careful about how you leave your job.  Many employees begin to download, print or forward key documents and emails to themselves which they believe relate to their claims against the employer.  Others may download or copy their entire inbox onto an external hard drive or memory device.  Some employees have performed a “factory reset” to their company devices or deleted large files and emails from their company email and document servers.  Know that all of these actions are trackable and will be used against you.

Employer counterclaims typically fall into the following categories:

  1. Theft of trade secrets:  employers use the Defend Trade Secrets Act to assert that you have taken some important, proprietary information to give to the highest bidder for your own benefit, i.e. to get yourself a new job or to harm the company for your own benefit.  While nothing you have taken may rise to the level of being a trade secret or even confidential data, taking the data itself has opened the door to this argument.  
  2. Violation of a non-disclosure/confidentiality agreement:  employers will argue that you have breached your obligations (either contained in an employee handbook or in a specific employment contract) by taking this information.  In fact, some employment handbooks have specific prohibitions against downloading, transmitting or deleting any employer information for any purpose whatsoever.  

There are a variety of other arguments which employers can raise surrounding this general fact pattern.  While you may not have done anything with the transmitted information, you have left yourself vulnerable to this counterclaim.   The problem is that employers will use this counterclaim to distract from your main case against them and to aggressively pursue discovery of your personal devices, email addresses and online storage (ESI Discovery).   This ESI Discovery is extremely costly and very invasive but is likely to be permitted to allow the employer to verify that you have not misused their data.  

The Bottomline:  Even if you have done nothing improper or nefarious with the company data,  you will be forced down a long, expensive and distracting rabbithole of having to prove that you did nothing wrong.  With your actions having opened the door to this counterclaim, you are weakening your case, distracting from the real issues in the action and increasing the costs of litigation. 

Proceed with caution!