Tuesday, May 15, 2018

The easiest way to lose an employment lawsuit


Photo by Devin Avery on Unsplash
Yeterday, I was tagged with the following question on LinkedIn:
Interested in your opinion on this.

The “this” in question was an $7.97 million verdict a jury in Fresno, California, entered in favor of a Chipotle manager fired for allegedly stealing $626 in cash from the restaurant’s safe.

How does a employee convert an alleged theft of $626 into an $8 million windfall?

The answer lies in evidence the jury never got to see.

When Chipotle confronted the employee with the alleged theft and notified her of the termination, it told her that it had video surveillance proving her guilt. Yet, when she asked to see the video, she says that Chipotle not only refused, but then destroyed the footage. The missing video helped the employee establish that her worker’s compensation claim, and not an alleged theft, actually motivated her termination.

The jury agreed.

There are many lessons to be learned from this story, but I am focusing on two.

1. Trials are risky. Companies need to be aware of the risks that are inherent any time they step into the courtroom in an employment case. In Ohio, only 6 out of the 8 jurors must agree on a verdict. Of the 8 total jurors, it is a safe bet that at least 6 will more naturally identify with the employee than the employer, which means that the company is usually playing from behind. Certainly not impossible to overcome, but far from ideal.

2. Judges and juries hate dishonesty. Nothing will anger a judge or jury more than a litigant that acts deceitfully, for example, by destroying damaging evidence or creating helpful evidence. The shenanigans the jury found to have taken place surrounding this termination had to be a significant factor in the large verdict. Indeed, I can’t imagine a scenario in which an employee can establish retaliation if the theft video (a) actually existed and (b) wasn’t destroyed.

The truth may not always set you free, but it certainly creates better odds than the alternative. Just ask Chipotle.

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