What Skeletons Are You Unearthing by Suing an Ex-Employee?

By Staff Report

Nov. 5, 2012

Before you bring suit against an ex-employee, you might want to consider whether there exist any skeletons in your employment closet that could come back to haunt you in the litigation. Case in point—Automotive Support Group, LLC v. Hightower [pdf], decided Nov. 4 by the 6th Circuit.

Automotive Support Group sued two ex-employees for breaching the non-competition provisions in their employment agreements. One of the sued employees, Don Ray McGowan, counterclaimed in the lawsuit for unpaid wages and severance owed under his employment agreement.

The appellate court affirmed the trial court’s dismissal of the company’s claims. It also affirmed the trial court’s judgment for McGowan on his unpaid wage and severance claims. How much did the employee win? $70,501.31—$750 in unpaid wages (trebled under the applicable South Carolina wage payment statute), $2,500 in severance pay, and $65,751.31 in attorneys’ fees. Add to that $70,000 whatever the company paid its own lawyers to litigate this case.

There are two lessons for employers that leap to mind:

  1. Unclean hands. Non-competition cases are often decided on equitable bases. In addition to money damages, you are likely asking a court to award you an injunction enforcing the agreement and precluding the employee from working for a competitor. To obtain an injunction, however, one must have what is called “clean hands.” Clean hands means that the party seeking an injunction has not acted inequitably or unfairly toward the party it is seeking to enjoin. Refusing to pay wages raises the possibility of a court refusing to issue an injunction because of your unclean hands. The better practice: pay the wages (you owe them anyway), and then file suit.
  2. Sometimes you get what you ask for. Would McGowan have started a lawsuit over $3,250? Probably not. Once he was sued, did have anything to lose by raising those issues as a counterclaim? Again, probably not. If you are going to bring a lawsuit against an ex-employee, make certain that you are not creating an environment to incent that individual to file a claim that otherwise might stay buried and never see the light of day.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or

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