Sometimes, employers make mistakes and fire employees for a reason later deemed illegal.
But if that same employer finds evidence after the fact that would have supported the termination decision on its own, that may serve as a get-out-of-jail card.
Just make sure you can have someone testify that you definitely would have terminated the employee had you known what you know now.
Recent case: Thomas worked as a pilot scheduler and reported alleged scheduling and other violations to authorities.
The company decided to terminate him. A few months after the termination, someone found an email Thomas had written. In it, he urged subordinates to quit over their schedules and referred to his supervisor in derogatory terms.
The company introduced this email as proof it would have fired Thomas no matter what.
The company was liable for firing wrongly terminating Thomas and hoped to use the email to cut off back pay as of the day it discovered the email.
The 5th Circuit Court of Appeals said that doing so works in theory, but in this case it did not.
That’s because the former employer never called anyone to testify about why it would have fired him over this email alone. Instead, it relied solely on the email itself. That wasn’t good enough. (Amistar Airways v. Administrative Review Board, No. 14-60061, 5th Cir., 2014)
The lesson here: If you uncover new information that would have led you to fire an employee you have already terminated, hang on to it.
If sued, you can use it as additional evidence that your decision was right, even if you were wrong in initially terminating the employee. Always bring such evidence to your attorney’s attention right away.
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