Employers Don't Get to Rewrite History!
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 liability for some violation that took place on the job.
At the time employment decisions were made any new facts were unknown and, therefore, had no impact on the decision-making process.
If an employer argues that newly uncovered information justified a past employment decision, then they need to explain how they took the action in the first place. Employers can't have it both ways. Either they had enough evidence to justify their actions or they didn't. What would they still be looking for at the 11th hour and how could anyone look at such late-breaking evidence as credible?
Employers may still be liable , even if they find new evidence that allegedly supports their position.