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After-acquired evidence and at-will terminations

On Behalf of | Jan 17, 2023 | Employment Law For Employers

No employee wants to be fired, and employers want to hire and retain good employees. Good working relationships between employees and employers are key to business growth and can prevent costly disputes.

While sometimes an employer has no choice but to terminate an employee, other times, wrongful terminations occur. Employees have rights in such cases, but employers also have defenses.

At-will employment

Kentucky is an at-will employment state. This means that an employer can terminate an employee for just about any reason, even if it seems arbitrary.

However, there are exceptions to at-will termination. One is if there is a contract stating a worker can only be fired for “just cause” or other reasons. An employment contract can be a collective bargaining agreement or sometimes even provisions found in an employment handbook.

In addition, an employer cannot fire an employee for discriminatory reasons. Certain protected classes are protected by state and federal law from discrimination in the workplace.

This means that an employer cannot take an adverse employment action against an employee simply because the employee is a member of the protected class. Employers cannot fire an employee based on that employee’s race, sex, disability or membership in another protected class.

Employees also cannot be legally fired for being a whistleblower, meaning they cannot lose their job for reporting illegal activity or refusing to do something illegal.

If an employee believes they were fired in violation of an employment agreement, for a discriminatory reason or for being a whistleblower, they may pursue a wrongful termination claim.

Wrongful termination and after-acquired evidence

Wrongful termination claims can help employees who were fired for unlawful reasons obtain the compensation to which they are entitled. Still, employers have ways to mitigate the damages a wrongful termination claim can cause. One way to do so is through the use of after-acquired evidence.

After-acquired evidence is evidence that an employer finds following the termination of an employee that shows the employee engaged in some wrongdoing in the workplace while employed that would have caused them to be fired anyway.

After-acquired evidence can be used to limit how much compensation an employee can receive for a wrongful termination claim. An employee may be able to show they were discriminated against, but if the employer can show the employee would have been fired anyway, this might lower how much the employer owes in compensation.

Still, employee misconduct does not serve as a reason to totally bar a wrongful termination claim based on discrimination. So, employers need to be careful when pursuing a defense based on after-acquired evidence.

Employees have a right to bring wrongful termination claims when warranted, but employers also have a right to defend against them. Sometimes, after-acquired evidence is key to mitigating damages in a wrongful termination claim brought by an employee.