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What Should You Advise Your Client on Responding to a Lawsuit from an Employee?

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Leaders are never pleased when their organizations are sued, and often the first impulse is to respond with a hammer. This is particularly true when the litigation has been brought by a current or former employee—legal counsel for the employer will be immediately asked to consider filing a counterclaim or initiating a separate lawsuit against the employee. Counsel must be prepared to take action to protect the legal and contractual rights of the organization, including its confidential information and intellectual property, while protecting the organization from the risks of statutory retaliation claims, malicious prosecutions actions, and sanctions for unwarranted litigation.

Detailed guidance for legal counsel on the best ways to proceed is provided in Strategies for Bringing Counterclaims or Separate Lawsuits against Plaintiff Employees in the LexisNexis Lexis Practice Advisor Journal™. This article examines the various claims that an employer may have in response to an employee lawsuit, such as:

  • Contract Claims
    • Restrictive Covenants, Including Covenants Not to Compete
    • Failure to Meet Performance Metrics

  • Tort Claims
    • Breach of Fiduciary Duties of Loyalty and Good Faith and Fair Dealing
    • Tortious Interference with a Contractual or Business Relationship
    • Conversion, Theft, and Fraud
    • Defamation

  • Statutory Claims
    • The Defend Trade Secrets Act
    • Misappropriation of Trade Secrets
    • The Computer Fraud and Abuse Act

This article, written by Daniel A. Kaplan, a partner with Foley & Lardner LLP who counsels employers in all aspects of the employer-employee relationship, contains relevant case law and statutory citations to assist labor and employment law practitioners in responding to the requests and concerns of their employer clients.

To read the complete current edition of the Lexis Practice Advisor Journal as well as previous editions, visit the LexisNexis Lexis Practice Advisor Journal page.

Lexis Practice Advisor® provides attorney developed practical guidance including practice notes, checklists, sample documents, and related legal content to help you work more efficiently. Learn more and request your free trial at Lexis Practice Advisor.

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