“Smoking Guns” and Unofficial Rules: A Reminder for Employers

21 May 2018 Labor & Employment Law Perspectives Blog
Authors: Christopher G. Ward

If you work in human resources, or are an executive or employment lawyer, at some point you probably have thought, heard or said words to the effect of “Juries are very unpredictable and can do some crazy things.” I admit that I often scratch my head reading about the conclusions juries have reached in some employment cases. But from my own trial experience and what I can glean from reading about others’, I have concluded that an unwritten rule exists regarding burdens of proof in employment matters.  Technically and legally, employees alleging discrimination or wrongful termination have the burden to prove their cases. Unofficially, however, that burden ends up falling to the employer.

Consider the following hypothetical wrongful termination case presented to a jury:

An employer terminates a bank manager based on closed-circuit video that, as the employer tells it, showed the manager pocketing approximately $600 from a teller’s drawer. The manager denies taking the money and argues the bank terminated her in retaliation for filing a workers’ compensation claim, making the standard litany of arguments regarding her long and loyal tenure and history of stellar performance.  In rebuttal, the employer shows that the manager has fallen on hard financial times, has taken a second job, is struggling to pay her bills, and therefore had the motive to steal the money.  And while the bank had previously supported this well-liked manager through several workers’ compensation claims and multiple pregnancy-related leaves, and was even actively considering her for a significant promotion, it simply could not abide having a confirmed thief in its management ranks.  Nevertheless, the jury sides with the manager, and awards her a multimillion dollar verdict, horrifying the bank for the windfall provided to someone who stole from it.

Normally an employer advocate would think, “Strong performance and loyalty notwithstanding, dishonesty and stealing from your employer are never acceptable.” But add one critical fact here and everything changes: The employer acknowledges during the trial that after observing the employee pocketing the money on closed-circuit video, it either lost or destroyed that video evidence supplying the basis for its termination decision and therefore could not show the jury that video.

The head-shaking aspect of this hypothetical thus is not how a jury could reward a thief, but rather how the employer could lose or destroy what amounts to “smoking gun” evidence. It is hard to fault our hypothetical jury for believing the employee in this circumstance, even where the employee cannot offer little more than hypothetical arguments for why the employer’s reasons for termination must have been nefarious.

Many employers probably feel constantly reminded of the need to document performance and disciplinary issues, so this hypothetical may seem like little more than a repeat of the same lesson. Yet there is more of a learning opportunity here than meets the eye.  When it comes to many judges and most jurors, employers should assume an unofficial quasi-legal rule applies only to them: If you can or should be able to show a negative assertion about an employee is true, you will be expected to do so.  Absent such a demonstration, judges and juries are likely to presume the opposite and credit an employee’s contrary assertions or speculation.  And this “rule” not only applies to “smoking gun” evidence, but also to smaller foundational facts in the bigger picture of the story.

Attorneys have more success winning cases (or resolving them advantageously) when we can shoot down all or nearly all of the rhetorical challenges a former employee throws out in response to an employer’s stated reasons for an adverse employment decision. For example, if a salesperson fails to meet goals, the expectation is that employers present objective data showing both the sales target and the performance below that standard, rather than merely saying that the employee’s performance was substandard.  Likewise, if an employee supposedly sent an unprofessional email, the employer should have that email, not just describe its contents or how it offended others.

Employers should apply this type of thinking equally to the big picture issues (“We terminated the employee for unprofessionalism”) and the smaller parts making up that picture (“Here are the written customer complaints and records of verbal complaints describing the exact nature of what the customers said”). And though it may seem obvious, it is always a good message to repeat: Show your work whenever an assertion should be provable by objective data.  When issuing a written warning for attendance, attach a copy of the employee’s timeclock records to show the underlying facts.

And if you have “smoking gun” evidence, make sure you keep it, not only because doing so is a “best practice,” but also because courts and jurors are likely to shift the burden of proof to employers and then hold it against the employers if they fail to meet that burden.

Finally, it may be fair to lament this “quasi-legal” rule that effectively shifts burdens of proof that are supposed to sit with employees. But ultimately, becoming annoyed with a technically improper “rule” is a losing strategy for employers because doing so will not change the landscape.  Focusing instead on  thinking, “If I can show it, I must show it,” regardless of the scale of the employee issue is a better and more proactive strategy to insulate against bad jury outcomes and deter litigation.

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