If former employee sues you, you may be able to file a counter-claim against him
Sometimes, an employer may have cause to file a lawsuit against a former employee. It’s probably not in your best interest to jump the gun and sue a former employee if he hasn’t sued you. However, it may make sense if the former employee has initiated legal proceedings against you.
Note that the court probably won’t let you file the lawsuit separately. You will have to file a counter-claim off the employee’s original lawsuit. That’s because courts prefer handling related claims together.
In fact, if you sue separately, you could even lose the right to countersue your employee.
Recent case: James, who was a resident of New Jersey, accepted a job with Robo Holdings, a Texas company. He moved to Texas.
During onboarding, James signed an employment contract. However, he soon claimed he was not being provided with the expense reimbursements Robo Holdings had allegedly promised him in the contract.
James quit and filed suit in a Texas court, alleging breach of contract. Robo Holdings answered the lawsuit, which is still pending. It did not file a counterclaim.
Soon after, though, Robo Holdings filed a federal lawsuit against James, claiming breach of contract and fraud.
James asked the court to dismiss the lawsuit, arguing that the federal lawsuit was related to his state lawsuit and should have been filed as a counterclaim to it.
The court agreed with James and dismissed Robo Holdings’ federal lawsuit. (Robo Holdings v. Healy, SD TX, 2018)