You respond by … suing her over a laptop.
That's the latest wrinkle in the employment lawsuit between former Fox 2 Detroit anchor Taryn Asher and WJBK-TV. Asher alleges sex discrimination and retaliation. The station denies those allegations and says it terminated her because of unprofessional workplace behavior.
But tucked into the station's response is something else: a counterclaim seeking the return of a company laptop that Asher allegedly kept after her employment ended.
According to the station, it repeatedly asked for the laptop, even sending Asher a prepaid shipping label and box. According to Asher's lawyer, she kept it because it contains information relevant to her lawsuit, and her attorneys tried to negotiate a protocol for returning it while protecting privileged and other information.
I'm not taking sides on who is right about this particular laptop. But the dispute raises an important question for any employer defending an employment lawsuit:
Just because you can countersue a former employee over unreturned company property, does that mean you should?
My answer: only as a last resort.
To be clear, employees should return company property. Laptops, phones, keys, equipment, documents, access cards — if it belongs to the employer, the employer has every right to expect it back.
But filing a counterclaim against an employee who has already sued you for discrimination, harassment, or retaliation carries baggage that another demand letter, phone call, or negotiated return protocol does not.
For starters, you could create another retaliation issue.
Courts have recognized that litigation conduct, including counterclaims, can potentially support a retaliation claim when undertaken with a retaliatory motive and without a legitimate good-faith basis. That doesn't mean an employer forfeits its legal rights merely because an employee sued first. It does mean you should be very comfortable explaining why your counterclaim was necessary.
Then there's the practical issue employers sometimes overlook: What is a jury going to think?
Imagine the case eventually reaches trial. The plaintiff tells jurors that she complained about discrimination, lost her job, sued, and then her former employer sued her right back.
The employer says, "But she had our laptop."
Maybe that explanation is entirely legitimate. Maybe the laptop is valuable, contains sensitive information, and the employee repeatedly refused reasonable requests to return it.
Or maybe a juror thinks: They sued her over a laptop?
I've even had clients suggest getting law enforcement involved when a former employee refuses to return company property.
Think about how that plays to a jury.
The employee says you failed to protect her from discrimination. She complains. She loses her job. She sues. And now you're siccing the police on her over a laptop?
Even if you believe you're technically within your rights, you've just handed the plaintiff's lawyer a potentially powerful piece of the retaliation narrative. Unless you're dealing with something far more serious than an ordinary dispute over the return of company property, calling the police should be an even more remote option than filing a counterclaim.
There are usually better options first. Document your requests for the property's return. Send a prepaid shipping box. Have counsel communicate with the employee's lawyer. If the employee claims the device contains evidence relevant to the lawsuit, negotiate a preservation and return protocol that protects both sides. Involve a neutral forensic vendor if necessary.
Exhaust the reasonable solutions before escalating the dispute.
And if none of that works?
Then, yes, a counterclaim might be appropriate. An employee doesn't earn the right to keep company property simply by filing an employment lawsuit. If the property matters, you've made reasonable efforts to retrieve it, and you have a legitimate, good-faith legal basis for seeking its return, litigation might ultimately be your last available option.
Just make sure it really is the last option.
Because when you're already defending a discrimination or retaliation lawsuit, the last thing you want is for a dispute over a laptop — or, worse, a call to the police — to become Exhibit A in the employee's retaliation story.