Best Ohio Wrongful Termination Attorney Answer: Can my employer sue me if I sue them? What can my job sue me for? Can I sue my boss for retaliation if he files frivolous counterclaims against me?
Our employment attorneys are often asked by nervous clients if there is any risk that their former employer or supervisor can “go after” them if they hire a lawyer or file a lawsuit. The short answer is yes they can, but it does not happen very often. Anybody can sue someone. The bigger question is whether the claims will amount to anything. In the employment context, the employer will rarely have actionable claims against former employees, and bringing frivolous counterclaims can allow a former employee to assert additional claims against the employer/supervisor for post-employment retaliation.
What can a former employer sue you for? Obviously, this is hard to predict, but as a rule of thumb it will likely have some link to your employment relationship. Some examples might include breach of contract, violation of a non-compete agreement, and trade secret violations. However, our employment attorneys have also encountered wacky and clearly retaliatory counterclaims as well, which resulted in us adding retaliation claim to the client’s lawsuit.
Ohio R.C. § 4112.02 explicitly prohibits retaliation against both current employees and former employees:
It shall be an unlawful discriminatory practice…[f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.
Although Greer-Burger left Temesi’s employ in 1997, former employees are covered under the antidiscrimination statutes. Robinson v. Shell Oil Co. (1997), 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808. The fact that R.C. 4112.02 uses the term “person,” which has a broader definition than “employee,” provides further evidence that Greer-Burger could still be covered under the statute. Likewise, the adverse action need not be employment-related, so the filing of a lawsuit or a counterclaim can constitute an adverse employment action in circumstances such as those in this case. Burlington N. & Santa Fe Ry. Co. v. White (2006), 548 U.S. 53, 126 S.Ct. 2405, 2412-2415, 165 L.Ed.2d 345.
In this case, the Ohio Supreme Court went on to explain the standard for determining when a counterclaim by an employer against a current or former employee is retaliatory:
Instead, we find it more prudent to permit an employer the opportunity to demonstrate that the suit is not objectively baseless. In determining whether the employer’s action has an objective basis, the … judge should review the employer’s lawsuit pursuant to the standard for rendering summary judgment. Cf. Bill Johnson’s Restaurants, Inc. v. Natl. Labor Relations Bd. (1983), 461 U.S. 731, 745, 103 S.Ct. 2161, 76 L.Ed.2d 277 fns. 11 and 12. Thus, an employer needs to “show his lawsuit raises genuine issues of material fact.” … If the employer satisfies this standard, the suit does not fall under the definition of sham litigation.
So, what does this mean? If a trial court dismisses a employer’s claims as a matter of law, the counterclaim should be viewed a retaliatory. Even if the employee loses on the underlying claim of race discrimination, gender discrimination, or sexual harassment, that employee would still win on the claim of retaliation based on the employer’s counterclaims.
Even if the employer’s counterclaims are not dismissed as a matter of law by the judge, a jury would still be in a position to find in favor of the employee on the counterclaims and then find that those counterclaims where retaliatory.
Because Ohio’s anti-retaliation statute is designed to prevent employers from intimidating employees and former employees against pursuing discrimination claims, Ohio courts have repeatedly found that while a former employer or supervisor has the right to sue you after you hire an employment attorney or file a lawsuit against them, they do so at their peril. If it is even arguable that the counterclaims they have brought against you are frivolous, not only will those claims be dismissed, but the employer or supervisor will have just created a strong retaliation claim.
At the end of the day, the possibility that an employer might file a counterclaim makes it critical that you call the right attorney. At the Spitz Law Firm, our employment attorneys are experienced in dealing with several forms of retaliation, including retaliatory counterclaims.
If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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