Bad News Can Be Good For a Wrongful Termination Lawsuit

An employer may build a stronger defense against a problem employee by digging up more evidence of misconduct.
Ask employers to list their least favorite tasks and firing an employee is bound to be at the top. It’s difficult, awkward and stressful for everyone concerned. Replacing an employee is expensive, time-consuming and hurts productivity, and the possibility of a lawsuit for wrongful dismissal makes it even more worrisome. So it’s no wonder that employers are reluctant to terminate staff even in cases of blatant employee misconduct.

But hanging onto a problem employee is a bad idea, no matter how unpleasant it may be to let him or her go. In most cases, it’s better to remove a problem employee as quickly as possible. Keeping on bad employees is bad for morale, but equally important is the fact that the discovery of one termination-worthy incident may be only the tip of the iceberg. In fact, some employment attorneys feel that the discovery of one fireable offense could indicate that there are others.

“Most difficult employees cause problems across the board,” wrote Toronto employment lawyer Howard Levitt in a recent article in the Ottawa Citizen. “When a client comes to me with one reason to terminate someone, I am always alert to the possibility of more,” he wrote.

Secondary Misconduct as a Defense

The good news is that this can sometimes work in the employer’s favor in the case of a wrongful termination lawsuit. If an employer discovers, while preparing a wrongful termination defense, that the employee engaged in misconduct other than that for which he or she was fired, the newly uncovered misconduct can be used in the defense of the lawsuit, and this applies in both the US and Canada.

“Ultimately, employers can rely on the results of later investigations if the evidence establishes that the problems existed at the time of dismissal,” wrote Levitt.

“In the US, federal and state law usually permit the use of ‘after-acquired evidence’ in defending employment discharge and discrimination cases,” says Charles Krugel, a Chicago labor and employment lawyer.

In fact, the employer could end up successfully defending a wrongful termination case that he or she might have lost, had the secondary misconduct not been uncovered.

“More specifically, this means that although there is an alleged illegal action by the employer, if newly obtained evidence of employee misconduct justifies firing or disciplining that employee anyway, then the employee can’t be compensated (awarded damages) even if the employer’s actions, prior to obtaining the new evidence, are illegal,” says Krugel.

Dig for Dirt to Reduce Damage

“The newly obtained evidence should warrant termination or discipline so long as such action is consistent with company policy or practice, is illegal or is otherwise so extreme that the employer can’t justify retaining that employee (eg, violence, theft, vandalism),” says Krugel. This evidence may not be a complete insulator from liability, Krugel says, but it may help to reduce damages.

It makes sense then, for employers faced with a wrongful termination lawsuit to spend considerable time and effort digging through the dismissed person’s employment history to find any other evidence of serious misconduct.

Published November 22, 2011; Author: Dawn Lomer

Also this month, on behalf of another social services client in Chicago, I negotiated very favorable terms for a pre-trial settlement at the National Labor Relations Board.   In this case, which is similar to the NLRB’s recent spate of social networking cases involving non-union companies, the NLRB brought a complaint against my client for firing a non-union employee for complaining to a third-party that had no managerial authority or control over the employee’s issues.  Here, even though the client is non-union, and the complaining employee had no authority to insert themselves into these types of issues, the NLRB alleged that the employee was representing the rights of other employees (none of whom lost their job or were disciplined).  The settlement reached requires no posting of notices, no reinstatement, and my client only had to pay a fraction of full backpay to the employee.

Conrad from Avvo said,

December 5, 2010 @ 10:26 am

Charles – not every lawyer appreciates the transparency that Avvo has brought to the legal industry, yet this is exactly what consumers want and deserve. This is why we will not remove profiles from Avvo. Our commitment to transparency has made us the number one legal directory in the world.

I’m disappointed to read your recommendation responding to Avvo’s transparency with fabrications. I would strongly caution any lawyer against deliberately and proactively misrepresenting their background anywhere – on a resume, at a cocktail party or on Avvo. The professional ramifications of this highly unethical behavior are severe.

Finally, if you are having trouble accessing your account, emailcustomercare@avvo.com for assistance.

Regards,
Conrad Saam

First, I’d like to thank Conrad and Avvo for responding.  However, they completely miss the point.  They argue that their system provides transparency to consumers.  To an extent, they’re right.  However, to the extent that I, and others, believe that their ratings system is biased against solo and small firms, they’re wrong (to read my arguments concerning this bias just search “Avvo” in the search box on this blog).  Moreover, there’s little transparency to a system that entices attorneys to “claim” their “profile” but doesn’t let them “unclaim” it.

Moreover, Conrad claims that there could be severe ethical ramifications for my suggestion about how to game Avvo by spiking a profile by either deflating it to zero or inflating it to ten.  I also find this contention disingenuous.  If I load my own profile with nonsensical negative information, therefore lowering my score to zero and rendering my rating incredible, how is this an ethical violation?  By making myself look ridiculous on a for profit and biased rating site like Avvo what ethical rules am I violating and how am I jeopardizing my license?  Beats me.

As I’ve said numerous times, I don’t care if my profile is removed (or not) from Avvo.  I just want to “unclaim” my profile.  It’s disingenuous for Avvo to claim transparency when they don’t explain that once you “claim” your profile it’s impossible to “unclaim” it.  Moreover, this isn’t a level playing field for all attorneys and consumers using Avvo to find attorneys.

My advice to Avvo is simple:  Allow attorneys to “unclaim” their profile.  In my mind, whether or not I’m on Avvo is superflous in light of the “claimed” profile indication, and Avvo’s refusal to permit attorneys to “unclaim” the profile.

Frankly, I don’t care whether I’m removed from Avvo or not, or whether Avvo exists or not.  I just want to “unclaim” my profile.  Avvo has a really sleazy operation. You can read my prior criticisms by searching Avvo in this blog or on Google. Some of the latest criticism, which was posted as a comment to an earlier posting, is from a law office which states that:

“I was suspended in 1996. Yet due to computers I can never get away from that. It shows up on the profile in bright red and as much as tells everyone that I must be no good. So, no matter how good a lawyer I am I will never get away from having been suspended. It is the one and only item that I am clearly rated on. Today I had another lawyer indicate that he would disclose my suspension in court. I have heard it a thousand times and I am mostly protected by Rule 404 of Evidence, but not on this site. I like to think that I have many good qualities that cannot be reduced to a red-ink sentence on the website. I need to get off of AVVO.”

The problem, as I indicated, is that once you’re on Avvo, you’re stuck.  There’s no way to “unclaim” your profile.  That’s just plain sleazy.

Additionally, the attorney emailed me the following additional comment:
“I talked to AVVO and to their general counsel.  They were adamant.  Therefore I have changed my profile in every way.  It is all still true, just not likely to direct possible clients to me.  I used an older picture that makes me look like I am raising kids.  (They are all in college.)   I listed my job with one of my small development companies.  Again, true.  I took out my phone and shortened my address.    Maybe this will distance me from AVVO.”

What I find really interesting about this comment is that it appears that there may be a way to game Avvo.  I haven’t tried this, because I don’t visit Avvo and I can no longer access my account (I wonder why  ), but if you put false information in your profile you might be able to drive your score down to zero or ten and maybe render the profile superfluous and unbelievable.

I’ll soon be posting my handout, PowerPoint & some topical cases on this site & my LinkedIn & SlideShare pages.