LEGAL BRIEFS: No Retroactive Fix for Employers!

“Even if higher management proves that evidence it discovered after-the-fact would have justified a supervisor’s action, such evidence can only limit remedies, not eliminate liability.”

McKennon v. Nashville Banner Publishing Co., 513, U.S. 352, 360-62 (1995).

So, an employer cannot go back and try to retroactively uncover incriminating evidence against an employee as a means of denying all liable for some violation that took place on the job.

Personally, I would question after-the-fact evidence simply because far too many employers are damn good at falsifying information and misrepresenting facts. If the case against an employee was concrete enough to be believed to justify an employment action, what is anyone finding at the 11th hour that can increase the appropriateness of the decision? An employer can rewrite history or legitimately find new information, but it will not eliminate possible liabilities in the case.