Can I Sue My Employees?

Due to the fact he received the complaint, he was now in a position of having to respond to the charges, and in that process, retain the services of an attorney to formulate a defense to the allegations. Immediately, the attorney was talking about participating in the mediation process offered by EEOC, and from there, discussing how much the owner should be willing to pay for it to be settled.

That struck a chord.

Based upon his stated reaction, he wanted nothing to do with settlement.

 "Why on earth", he asked, "should I be forced to offer any money to a poorly performing employee just because she alleges that she was discriminated against, even when there is ample evidence we did absolutely nothing wrong or unfair?"

 "Because", the attorney replied, "it's much cheaper for you to pay to get this settled than it is to fight it and pay even more in the long run.”

 At that moment, he threw up his hands and asked, "then why can't two play this game...why can't I sue her too?" 

This is a question that I know many business owners contemplate from time to time when faced with similar meritless allegations of some sort or another, and who are then compelled to pay significant sums of money to prove what they did was completely lawful. Our legal system is structured in a way that encourages litigation from employees because disgruntled employees have nothing to lose by making the allegations, and much to gain through settlement demands. It is a system of legalized extortion. Employees have to pay nothing to file a charge with the EEOC, yet the employer pays dearly to defend itself. 

Then, if the EEOC eventually finds that the employer indeed did nothing wrong, they nonetheless have to issue the employee a "right to sue" letter that stipulates they have 90 days to file a civil action against the employer, meaning they can get an attorney to file a lawsuit alleging the very same allegations, demanding responses from the employer, and inevitably, more demands to settle. 

And what does the employee pay the attorney to file this charge? 

Nothing. 

Zilch. 

Nada. 

Plaintiff's attorney in employment cases are almost always paid on a contingency basis, meaning the attorney only gets paid if there is an award or settlement in favor of the employee. This results in more costs for the employer, more time and money spent re-responding to the allegations, more frustration, and more desire to just throw in the towel and close up shop so as not to have to deal with such an unbalanced and unfair system of workplace justice. 

I have heard many business people talk about how it would be a welcome change of trends to have employers go on the offensive and fight back.....somehow. 

But how? 

I think it would begin with going down the list of irritating employee behaviors and performance problems that plague our workplace, and then systematically attack these occurrences with employer-initiated lawsuits. Let's start with absenteeism. If you miss work, you will be sued. Why? "Breach of Contract!” Our agreement is that we pay you wages and you, in turn, actually show up for work. If you fail to show… lawsuit. 

Next will be to take on poor performance. If the employee performs poorly, lawsuit. Why? "Misrepresentation.” You told me you could perform the duties of this job satisfactorily. You lied. You will hear from our attorney.

What about that age-old tactic of exaggerating a workplace injury and freeloading on the workers’ comp train? You'll be sued for "Wrongful Termination:” you wrongfully terminated working while you pretended to be disabled.

If you complain about your job or pay level to your co-workers then "Harassment" charges will be forthcoming.

If you leave our company to take a higher paying job, you can expect a "Discrimination" charge against you because you obviously discriminate against the companies that can't afford to pay higher wages. The list of employer causes of action can go on and on. Workplace justice could eventually be more balanced. Employees may think twice about being so willing to file a frivolous charge against the company, if, in doing so, the employee could be counter-sued by the employer claiming the company suffered due to the employee's negligence, carelessness and/or unwillingness to put forth the necessary effort to perform satisfactorily. 

Are we dreaming?

Probably. But business owners everywhere are just waiting for the bold and brave member of congress who is willing to introduce a bill that grants employers just a bit of retribution against the growing tide of baseless accusations. 

Dream on!