After Termination Revelations

System

I need help in remembering something I heard in an employment law seminar. If we terminate an employee for one reason (such as excessive absenteeism) but after the termination find that he or she was stealing from the company, can this information be used if the employee sues us for illegal termination, or if we choose to appeal the unemployment insurance? Has anyone done this before?

John Vering MO

The legal doctrine is called "after acquired evidence" and can be used in some circumstances as a defense to reduce the damage claims of an employee bringing an action under the theory that even if the original reason for the firing was not valid, the person would have been fired anyway for another valid reason. This response should not be considered legal advice.
John Vering
Missouri co-editor
800-243-5070

Theresa Gegen TX

One caveat: Be sure that you don't try to change your reason for termination after the fact. The reason for termination on the day the person was fired, is the reason forever. If you change reasons, most courts hold that a jury can then decide that you are trying to cover up illegal discrimination.

Good Luck

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 01-25-02 AT 08:49PM (CST)[/font][p]When we fired someone in our governmental jurisdiction, of course, he or she would be entitled most often to an "after-discharge", full-blown evidentiary hearing on the allegations raised in the discharge letter. We had to prove proper cause for the discharge or wind up having it overturned in the administrative appeal process.

On occasion, after we fired someone, stating the reasons, new evidence came to light on another wrongdoing by the employee to support discharge (perhaps by itself). We'd investigate and then if warranted we would "amend" the original discharge letter to include the new cause as a basis for the discharge.

If the discharge went to a hearing (which was often about 3 months after the discharge), and we did not include the additonal reason in a formal notice, we would be "stuck" to the original reason. By amending the discharge letter to include the new reason then the agency could present its case on that in the hearing. This allowed for the following:

If the hearing officer overturned the first cause for discharge but supported the additional cause, the employee would still remain discharged. In that case, the hearing officer would order back pay from the date of the original discharge to the date of the notification of the additional cause that did warrant discharge. This of course prevented even larger back pay issues if we waited until after the hearing.