“My employee just sued me and my company claiming sexual harassment. It’s patently false. I want to counter-sue”.
I’ve heard this one before. Can you file a counterclaim to a workplace harassment suit? In theory, maybe. Should you? That’s another question altogether. Why shouldn’t you file a counterclaim — particularly if you really believe — and maybe even have some evidence that the claim is false? Let’s get back to the answer to the first question: Why is it only maybe? Doesn’t our legal system have a mechanism for counterclaims? Don’t we have a right to file defamation claims? If so, why wouldn’t or shouldn’t an employer file a counterclaim?
It might actually be illegal. Whaaat? If the employee files the claim in a state with an anti-SLAPP statute, the counterclaim may get dismissed. Huh? What’s an anti-SLAPP statute? That’s our topic this week at The EmpLAWyerologist. Let’s dive in… First what is SLAPP? It stands for Strategic Lawsuits Against Public Participation. SLAPP lawsuits tend to target those who communicate with their government or speak out on issues of public interest. The objective generally is to intimidate and/or silence critics by forcing them to spend money to defend the lawsuit. Even a meritless lawsuit can take years and possibly hundreds of thousands of dollars to defend. Many states therefore have enacted anti-SLAPP laws. Currently, Arizona; Arkansas; California; Delaware; District of Columbia; Florida; Guam; Georgia; Hawaii; Illinois; Indiana; Louisiana; Maine; Maryland; Massachusetts; Minnesota; Missouri; Nebraska; Nevada; New Mexico; New York; Oklahoma; Oregon; Pennsylvania; Rhode Island; Tennessee; Texas; Utah; Vermont and Washington have anti-SLAPP statutes. Some states’ courts (e.g. Colorado and West Virginia) recognize anti-SLAPP protections via case law. You can read more about any of these states’ anti-SLAPP statutes here.
What does that have to do with employment law, though? Do we have a real, live case example? As a matter of fact, we do. The case is Rosario and Caring Bees Healthcare Inc., et al C.A. No. 19-P-1223 (Mass. App. Ct. June 5, 2020). Here’s what allegedly went down:
OK, so here’s the main takeaway for employers. If an employee alleges harassment, discrimination, or violation of rights under any other employment laws, a counterclaim may not be the way to go — even if you really believe the main claim is baseless. If your employee works and files a claim in a state that provides anti-SLAPP protections, a court may find your counterclaim is a SLAPP suit–and your claim may get dismissed. If an employee wins a motion to dismiss a SLAPP suit, s/he may also be able to recover attorneys’ fees and costs. S/he may even be able to file a “SLAPP -back suit”, which could result in punitive damages against the (counter)claimant. Effectively, one could argue that a SLAPP claim in the employment law context is another form of retaliation, which is illegal under pretty much any employment statute. That is why it’s often a bad idea to file a counterclaim against an employee alleging violation of their rights under employment statutes.
Until next time…
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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