Workers Who Sue Bosses May Get Sued Back : Workplace: Some firms are countersuing rather than settling frivolous worker lawsuits. Experts say the technique can backfire, however.

Jonathan Segal has a new trick for companies that find themselves the victim of frivolous employee lawsuits: Sue ‘em. The theory is fairly simple, spun from an old truism that the best defense is a good offense. But to work, it must be sparingly used and carefully deployed, warns Segal, a labor attorney with the Philadelphia firm of Wolf, Block, Schorr & Solis-Cohen.

With the number of lawsuits filed by present and former employees now rivaling the number of personal injury claims, Segal argues that corporations need to turn themselves into more able courtroom opponents. And one way to do so is to countersue in cases where an employee is trying to get something that management feels he or she is not entitled to.

Segal warns that this approach should be employed only against the worst abusers of the legal system and then only when the company believes that it has an open-and-shut case--as when an employee has destroyed files, for example, or breeched confidentiality or acted dishonestly.

“I’m not suggesting this as a normal course of action,” says Segal. “Any legal challenge should be researched thoroughly to make sure the facts are so egregious that a jury would be convinced the company had been harmed. If it’s a close call, a company shouldn’t do it.”

But typically, Segal says, it is the people who wreak the most havoc in the workplace as employees who later make the most tenacious plaintiffs in the courtroom. And turning the tables on them can produce benefits aplenty, he says.

For starters, a countersuit can strip employees of some psychological benefits attached to the role of being the legal aggressor, often making them more willing to settle. As the target of a countersuit, they also are forced onto the defensive and into devoting time and money to protect against the charges. A countersuit is also a powerful means of letting the employee’s lawyers--and the law community in general--know that the company won’t be blackmailed and is willing to vigorously defend its rights.

As a general rule, large awards are not the objective here. For one thing, most employees don’t have the money to pay them. Rather, the idea is to go after a fairly small sum--maybe $3,000 to $4,000--on the theory that the more reasonable the company seems, the more likely it is to win the jury’s approval.

Say, for example, that an employee was fired because he or she continually failed to meet written performance expectations. A company may be able to recover losses that resulted from his or her failure to complete the stated goal.

Or in a case involving willful misconduct, a company might be able to add to its list of damages any costs associated with counseling the employee or costs accrued in recruiting and hiring his or her replacement.

Segal’s bulldog approach won’t exactly endear him to the labor lobby. Even colleagues who regularly sit on the side of management warn that this technique, though intriguing, can backfire.

“It’s definitely true that companies are much more aggressive these days. They don’t just sit back and write a check for $25,000 so that someone will go away,” says Larry Lorber, an attorney with the Washington law firm Kelley, Drye & Warren. “I think judges and juries would generally not be sympathetic to a company countersuing.”

A countersuit could be viewed by a judge or jury as an attempt to spurn legitimate complaints, notes William Kilberg, a labor lawyer with Gibson, Dunn & Crutcher in Washington. “In cases where employers have countersued, they often have been socked with punitive damages,” notes Kilberg.

In part, that could result from the widely held notion that companies are supposed to defend against lawsuits, not initiate them. “This is a country where it’s frowned upon for a Goliath to sue a David, whether that’s fair or not,” says Burke Stinson, an AT&T; manager who deals in legal issues. “But it certainly is an intriguing concept and one that could be used in special cases to head off capricious lawsuits.”