Resume Fraud, Illegal Aliens and the After-Acquired Evidence - Research Paper Example

Resume Fraud, Illegal Aliens and the After-Acquired Evidence ABSTRACT The After-Acquired Evidence Doctrine is a controversial rule which the courts have recently utilized in deciding employment discrimination claims and unlawful discrimination suits in the context of employment law. This paper clarifies the connotations and denotations of After-Acquired Evidence Doctrine as well as explores its beginnings, its implications and its applications. The paper includes cases that set precedents and clarifications of the doctrine and will also demonstrate how this it relates to employment and termination of individuals who commit resume fraud, and illegal aliens who obtain employment in the light of their illegality. The paper analyses the applications of the doctrine and how employees and employers may equitably maximize the rule to its full extent. The doctrine may level the playing field for employers in employment discrimination claims. However, there is also a danger of inequitably undermining the plaintiff's claims of demonstrating authentically unlawful motivations of employers. The After-Acquired Evidence Doctrine is one of the most controversial rules recently contained in the employment law. As claims on employment discrimination are often invoked in courts by those who alleged unlawful discharge as a consequence of their ethnicity, religion, disability, gender or race, the US courts’ decisions with regards these claims have transformed and encompassed contingencies that were neither promulgated nor mulled over by legislature. The After-Acquired Evidence Rule spawned to be a ground-breaking doctrine which takes into account misconducts - such as document and resume fraud - and the legality of the working status of a person - such as that of an illegal alien. The most controversial aspect of this doctrine is that, the evidence discovered which included the misconducts and the illegality of a person’s status as aforementioned, are still admissible in courts which will consequently undermine a plaintiff’s claim of employment discrimination - even if the misconducts are discovered after the employee is discharged. One of the most significant aspects of the Acquired-Evidence doctrine is that, plaintiffs are prohibited from all remedies although the misconduct done by the claimant is discovered after the termination of employment has been put into effect (Bangert et al, 1999). This ruling is essentially distinct from the customary employment discrimination cases in that, it bestows employers a more reasonable summary judgment. The claim for discrimination becomes irrelevant as the emphasis of the employment discrimination case switches towards the employee misconduct. Normally in an employment discrimination case, the argument centers on the employment decision, as for instance, termination of employment, and the purpose of the employer. This only means that the falsification of documents, resume fraud and the legality of a worker’s status may reduce or even eliminate the liability of the employer in an employment discrimination suit. Wettre (2007) asserts that the after-acquire evidence defense ‘may level the playing field for employers’ in the current system whose bias leans towards employees. The scope and range of the after-acquired evidence doctrine is extensive since it applies to a variety of cases with regards employment law. The scope includes, for instance, an employee who discharged harmful chemicals, an act unknown to his employers, before his termination. The court would normally decide that it is justifiable for the claimant to receive limited or no back pay damages at all in the light of his violations as for example, releasing hazardous chemicals. 1 In other applications of the doctrine, a claimant’s prior conviction unknown to his employer and in the first place barred him from employment for public position, are rationales for his claims to be dismissed. 2Failure to divulge status as an illegal alien – an entity of foreign origin who does not hold a legal permit to work, reside, travel or study in another country - whose status involves a legislative prohibition to employment and hence, her status, had it been known, prohibited the employment in the first place – is denied. In the landmark cases filed by undocumented aliens that set precedence for the after-acquired evidence rule, US courts assert that undocumented aliens are prohibited and disqualified from obtaining lawful employment in the country. In addition, it is also an unlawful act to utilize ‘fraudulent documents’ and use it for job application. 3The court admits however, that “although illegal aliens have certain rights…an illegal alien or an alien who is here as a temporary visitor for pleasure and without authority to become gainfully employed cannot lawfully work." Falsification or misrepresentation of employment application and resume fraud also count as reasonable grounds for invoking defense under the after-acquired evidence doctrine. It is a fact, however, that many, in order to obtain employment, would conceal criminal convictions, educational background, and cause of termination from previous jobs. Others may include resume fraud - information which fraudulently demonstrates eligibility or aptitude for employment (Wettre 2007). While the defense could utilize the plaintiff’s misdeeds and violations during the duration of his employment, the employers are cautioned against using the acquired-evidence defense as a tool to ‘embark on a fishing expedition’ in order to collect detrimental information as a rejoinder to the claimant’s discrimination grievance (Wettre 2007). The guidelines put forth by the Equal Employment Opportunity Commission (EEOC) with regards after-acquired evidence warns employers that the “evidence of wrongdoing may not cut off back pay if the evidence was unearthed during a retaliatory investigation” as for instance, one which was instigated as a rejoinder to the discrimination complaint, attempting to “uncover derogatory information about the complaining party.” The EEOC also cautions that an employer who opts to conduct a ‘retaliatory investigation’ will be disadvantaged of the impartiality bestowed to employers because retaliation “4is an independent violation of the federal employment discrimination laws (EEOC Guidelines in Wettre 2007). This only signifies that the counsel for the employer should act ‘expeditiously’ to invoke the after-acquired evidence rule as a defense if need arises. The court, however, does not clarify whether the rule is waived if the employer failed to invoke the rule except that the court made it apparent that 5the burden of proof rests on the employer, referred to as ‘affirmative defense’. As soon as the defense is in the case, the counsel for the defendant should carry out the quest for discovery progressing towards summary judgment. Acquisition of summary judgment with regards the after-acquired evidence defense rests on two imperatives, as listed by Wettre: “the occurrence of the misconduct; and (2) that, if discovered, the employee would have been terminated” (Wettre: 2: 2007). On the second imperative, the employer’s responsibility is to illustrate the employee’s misconduct or violation and that they are ‘severe’ enough to require termination if the employer has prior knowledge of them. The court contends that the most logical and acceptable evidence and grounds for termination are the ‘regulations,’ violations and misdeeds that caused the termination of other employees for the same or comparable conduct. The proof that the company was conscious of the misdeed but failed to take action for the termination of the employee will only strengthen the claim of the plaintiff. The EEOC guidelines cite several ‘relevant evidence’ on which employers can base their notions of misconducts that would cause an employee termination. These apply if: 6“(1) the misconduct is criminal in nature (e.g., embezzlement, fraud, assault or theft, illegal alien status); (2) the employee’s behavior compromised the integrity of the employer’s business (divulgence of trade secrets, security or confidential information); or (3) the nature of the employee’s misconduct was such that the adverse action appears reasonable and justifiable.” When the employer is successful in obtaining summary judgment, the employee’s relief and remedies he brought forth in his claim will be considerably lessened. The After-Acquired Doctrine has antecedents and precedents in the employment discrimination case filed by Ray Summers, a State Farm employee who was fired in 1982 after working for 20 years. The company asserted that Summers was fired because of his ‘poor attitude, poor quality of work’ and misconduct by falsifying company documents. Summers filed a suit claiming unlawful discrimination due to his age and religion. During the litigation, the company found out that Summers also falsified 150 more company records. The company contended that had the violations been discovered during Summer’s employment, they would have fired him immediately. While Summers filed a motion of limine to bar falsified documents to be used as evidence, State Farm retorted with the filing of motion for summary judgment (Bangert et al, 1999). The court in Summers’ case contended that misdeeds would be considered in the rewarding of remedies and barring the claimant from relief and remedies although the violations were discovered after the termination and after the claim was made. Interestingly, the court used the Summers decision in order to resolve the McKennon case. The Supreme Court in 1995 brought forth judgment that clarified conflicts on opinion among the courts as to whether or not all prohibition on remedy and relief should be applied in all after-acquired evidence cases. In the case of McKennon v. Nashville Banner Pub. Co., the claimant alleged that her employment termination under Nashville Publishing violated the Age Discrimination in Employment Act (ADEA) (DiCesare, 1995). During McKennon’s court deposition, the defendant made discoveries with regards the employee’s misconduct before her termination. Allegedly, the plaintiff duplicated important and sensitive documents which violated company policy. The Supreme Court, however, declined to apply in full the Summers rule when it decided to leave the claimant some relief and remedy. The court observed that the ADEA was 7designated to prevent discriminatory actions and 8compensate the claimants for injuries resulting from prohibited discrimination. On the other hand, the court found that the after-acquired evidences are entirely distinctive as they are founded on the principle that ‘unlawful’ motive is the exclusive basis for the termination of an employee. Moreover, the court which heard the McKennon case admitted that ADEA does not oppose the legitimate interests of employers to apply nondiscriminatory decisions with regards hiring or firing employees. However, the court asserts that the individual’s misconduct and company rule violations would have an effect on the remedies provided for by the law. Nevertheless, the court declined to set a decisive rule which would establish the kind of remedies to be made available in after-acquired evidence cases. The McKennon verdict rejected the validity of reinstatement and front pay as appropriate remedies but it endowed remedies through back pay which encompass the date of the employee’s termination until the after-acquired evidence was discovered. The court which handed down the McKennon decision was successfully able to clarify the true nature and intentions of the after-acquired evidence. The decision took precedence on subsequent similar cases in other states. In the State of Alaska, for instance, the Alaska Supreme Court decided that the limitations promulgated by the trial court on its utilization of the after-acquired evidence doctrine contained errors. Basing on the US Supreme Court’s decision on McKennon v. Nashville Publishing, the court asserted that the discovery of ‘grave misconduct on the part of the terminated employee’ which would have remained unknown if the employee were not discharged ‘should excuse the employer from reinstating the employee’ or bestowing the claimant remedy and payment for damages in a ‘wrongful termination’ (Venneberg 2001). The McKennon case also set precedent for the verdict and court pronouncements in 9Harris v. Chand case. In this case the Eighth Circuit Court contends that the employers must ascertain that the misconduct is severe enough and that the employee would have been discharged of employment from the misconduct alone in order to plea for damage limitation under the after-acquired evidence rule. Harris, a terminated employee, filed for a suit under Title VII for racial discrimination against her employer, D. Chand of ADT Security Services. The District Court for the Western District of Missouri ruled judgment in favor of the employer. Harris appealed claiming abuse of discretion by the District Court. The Court of Appeals, however, held that the District Court did not abuse its authority in consenting to the employer’s presentation of after-acquired evidence that proved the employee falsified her employment application. In addition, the Court ruled that the District Court did not abuse its discretion for its exclusion of two evidences: the claimant’s welfare fraud conviction and discipline of white employees. The aforementioned cases, with the McKennon case setting a benchmark for subsequent cases and eliminating confusions that were created by the case’s predecessors, illustrate that the after-acquired doctrine is permissible and in some cases, its invocation may affect awards and remedies sought for by the claimant. However, it should be remembered that claims of discrimination normally depend on the plaintiff’s credibility and more often, after-acquired evidence undermines the claimant’s entire case. Hence, past ‘violations’ committed within the duration of employment, such as resume fraud or gross misconduct, although not probative, are admissible under the After-Acquired Evidence Doctrine. This could result to the limitation of damages or worse could be used merely to attack the credibility of the claimant. Thus, it is essential for counsel of both parties to consider and prepare for the probability that after-acquired evidence may be utilized during the trial. A maximum amount of prudence should be exercised on the verification of employment application and a complete review of the claimant’s employment records and performance must be carried out. These actions may unearth misrepresentations that could affect the court’s assessment of the employment discrimination case and to guarantee that abuse of the doctrine does not ensue. Claimants must immediately give up claims for reinstatement or front pay and instead claim for punitive damages, back pay remedies, attorney’s fees and emotional injury. In conclusion, although the after-acquired evidence doctrine is a groundbreaking rule and ‘leveled the playing field’ for employers in unlawful discrimination claims, it is not immune to abuse. However, it is important to remember that discrimination claims under the employment law have also been prone to abuse in the past. The courts’ decisions to bar remedies on claimants, who committed severe violations and misconducts such as resume fraud and the obtaining of work by an illegal alien, do not curtail or deny legal and civil rights to the claimants but a rejoinder to achieve judicious utilization of the law. The transformation of the After-Acquired Evidence Doctrine, from the preceding cases during which it was utilized as an absolute defense to the subsequent cases where it is employed to limit remedies and awards, is a significant shift in employment law. However, it could also shift the focus of the claim from employment discrimination to the plaintiff’s misconduct which can be sometimes irrelevant to the original case itself. Hence, if courts fail to exercise caution, the after-acquired evidence rule could give consent to an employer’s unlawful actions. REFERENCES Bangert, Jack, & Katz, Mark (1999). THE AFTER-ACQUIRED EVIDENCE DOCTRINE. Journal of the Missouri Bar. 55-2, 19-23. DiCesare, C. (1995).The Law at Work. Monthly Labor Review. 12, 65-66. Wettre, Leda Dunn (2007).Turning the Tables in Discrimination Suits. New Jersey Law Journal. 188, 1-3. Venneverg, Terry A. (2001). AFTER-ACQUIRED EVIDENCE IN EMPLOYMENT CASES IN ALASKA:AN ALTERNATIVE APPROACH. Alaska Law Review. 18:1, 59-69 Harris v. Chand, 506 F.3d 1135 (8th Cir. 2007) Nemar v. Disney Store, Inc., 91 F.3d 610, 621 (3d Cir. 1996), cert. denied, 519U.S. 1115 (1997). Bastas v. Board of Review in Department of Labor& Industries, [155 N.J. Super. 312 (App. Div. 1978) Crespo v. EvergoCorporation, 366 N.J. Super. 391 (App.Div.), certif. denied, 180 N.J. 151 (2004) 513 U.S. 352, 115 S.Ct. 879 513 U.S. 352 (1995) 422 U.S. 405 (1975) 163 N.J. 473 (2000) EEOC Notice Number 915.002, Dec. 14, 1995. EEOC Notice Number 915.002, Dec. 14, 1995. EEOC Notice 915.002, Dec. 14, 1995 in Wettre: 2: 2007 Footnotes 1. 163 N.J. 473 (2000) 2. Crespo v. EvergoCorporation, 366 N.J. Super. 391 (App.Div.), certif. denied, 180 N.J. 151 (2004) 3. Bastas v. Board of Review in Department of Labor& Industries, [155 N.J. Super. 312 (App. Div. 1978) 4. EEOC Notice 915.002, Dec. 14, 1995 in Wettre: 2: 2007 Nemar v. Disney Store, Inc., 91 F.3d 610, Nemar v. Disney Store, Inc., 91 F.3d 610, 5. 621 (3d Cir. 1996), cert. denied, 519U.S. 1115 (1997). 6. EEOC Notice Number 915.002, Dec. 14, 1995. 7. 422 U.S. 405 (1975) 8. 513 U.S. 352 (1995) 9. Harris v. Chand, 506 F.3d 1135 (8th Cir. 2007) Read More