Given the rise of employees bringing claims against former employers, a new strategy of employers has been to bring pre-emptive lawsuits. Taking the adage a best defense is a good offense to heart, employers have started to aggressively pursue pre-emptive lawsuits against employers in attempts to stem claims and to gain a decisive advantage in the legal system.
Ronald Green, partner at the firm of Epstein Becker Green writes about the advantages for employers to bring about such suits. Among them, Green states that in certain situations, notably litigation that can reveal confidential, embarrassing or protected information or in the case of a costly class action suits, preemptive suits can maximize the benefit for employers by enabling them to set the time and venue for litigation, while as plaintiff is more likely to be viewed sympathetically by the jury. Furthermore, taking action in advance of counterclaims enables corporations to play damage control while maximizing their public relations efforts.
The New York Law Review cites a recent example of this kind of action, where a law firm has taken pre-emptive action against a secretary that has demanded a $9 million settlement stemming from accusations of patterns of sexual harassment and culminating in a rape. The law firm fired back with a pre-emptive lawsuit claiming defamation, tortious interference and intentional infliction of emotional distress in that the attorney in question was “set up”. Furthermore, the firm requested a declaratory judgment seeking to rightfully fire the employee for misrepresentations stemming from providing a false Social Security number to avoid a past drug charge. The employee is currently is currently on paid leave, awaiting the outcome of the trial.
However, the range and use of these preemptive lawsuits are limited, and sometimes can work counter to the goals of an employer. The article cites Deborah Katz, an attorney based in Washington, D.C. She states that pre-emptive lawsuits are “”clearly retaliatory acts”, and that they can subject the employer to even further liability for retaliation. Also, Katz claims it is a thuggish tactic aimed at intimidating an employee to back down from their claims.
This can be seen in the case of Bill O’Riley and his former employer, Andrea Mackris. Mackris, whose immediate supervisor was O’Riley tried to settle for damages stemming from sexual harassment during her employment with Fox News and O’Riley. Her attorney, Bennedict Morelli was in confidential negotiations with Fox’s when they brought a charge of extortion towards the attorneys firm and Mackris. This ultimately erupted in a public relations war, with O’Riley trying to paint Mackris as the stereotype of the hyper-sexualized gold digger. After transcripts of tapes between the two leaked coupled with the extortion suit, public opinion turned largely against O’Riley and Fox forcing them to settle with Mackris and to drop the pending lawsuits against Mackris, and Morelli’s law firm.
As an employee, a pre-emptive lawsuit can get in the way of your legitimate claims against an employer. These suits can take precious time and resources away from your claims, and can have shed a negative light on the way in which your case is perceived.