Under what circumstances are you legally protected from breaking a company policy

[EdmondDantes]

Jurisdiction

Louisiana

An employer has a company policy that states no employee shall forward company emails outside of work related situations, and doing so could result in termination. This same company violated ADA, EEOC & FMLA laws and some of the proof is contained within company emails. That said, can an employee who has agreed and signed the company policy, still continue to forward such emails to an outside email address, for the purposes of preserving evidence of the ADA, EEOC and FMLA violations?

A lawsuit exists by the employee against employer for the ADA, EEOC & FMLA violations, however, the employer discovered the violation of the company policy by seeing the emails which were produced in discovery. The employer is now trying to retroactively fire the employee, citing the after acquired evidence defense. However, employee maintains that this was the only way to build a case and later prove the violations by the company. How would a Judge rule on this issue? How have similar cases been decided regarding this or similar issues?

 

[Zigner]

The employee should speak to his/her attorney about this matter. With that said, the employee should be aware that nobody (especially not random strangers on the internet) can say how a judge will rule on anything. The best that the employee could hope for is for his/her attorney to make an educated guess based upon the totality of the information at hand. The members of this (or any other) forum have NO information about the matter at hand, so even our guesses would be just like throwing dust in to the wind and guessing which particles will land where.

I will throw you a bone, though. One cannot be retroactively terminated.

 

[EdmondDantes]

The employee should speak to his/her attorney about this matter. With that said, the employee should be aware that nobody (especially not random strangers on the internet) can say how a judge will rule on anything. The best that the employee could hope for is for his/her attorney to make an educated guess based upon the totality of the information at hand. The members of this (or any other) forum have NO information about the matter at hand, so even our guesses would be just like throwing dust in to the wind and guessing which particles will land where.

I will throw you a bone, though. One cannot be retroactively terminated.

Thank you for the response. I understand there is no way to tell how a Judge would rule on this particular case given limited information. I suppose I should have worded it better. I was trying to put out feelers to see how judges have ruled on this type of issue in the past....to gain more perspective. The attorney on this case believes the taking of the documents to prove the employer violated laws should trump the breaking of company policy. But I was hoping to get others' opinions as well.

As to being fired retroactively. I was under the impression this was legal in Louisiana. I.e., an employer discovers you violated policy and therefore, for the purposes of litigation (Federal Court) can retroactively fire you back to the date the violation occurred so as to bar you from potentially seeking more back wages. I'll have to look into this more, but I appreciate all of your insight. Thanks!

 

[zddoodah]

That said, can an employee who has agreed and signed the company policy, still continue to forward such emails to an outside email address, for the purposes of preserving evidence of the ADA, EEOC and FMLA violations?

Can it be done? We have no reason to think otherwise. To what "outside email address" did you forward the emails? Some third person or your personal email? If the goal was to preserve evidence, you could have printed them or saved them to a flash drive. That would have accomplished the preservation goal without violating the company policy.

The employer is now trying to retroactively fire the employee, citing the after acquired evidence defense.

What does "trying to retroactively fire" mean?

However, employee maintains that this was the only way to build a case and later prove the violations by the company.

Clearly, that's not true (see my first comment above).

How would a Judge rule on this issue? How have similar cases been decided regarding this or similar issues?

These are excellent questions for you to discuss with your attorney in pending lawsuit.

I was trying to put out feelers to see how judges have ruled on this type of issue in the past....to gain more perspective.

To the best of my knowledge, no one who posts here regularly is an employment law attorney in Louisiana (or in Louisiana at all).

 

[EdmondDantes]

Can it be done? We have no reason to think otherwise. To what "outside email address" did you forward the emails? Some third person or your personal email? If the goal was to preserve evidence, you could have printed them or saved them to a flash drive. That would have accomplished the preservation goal without violating the company policy.



What does "trying to retroactively fire" mean?



Clearly, that's not true (see my first comment above).



These are excellent questions for you to discuss with your attorney in pending lawsuit.



To the best of my knowledge, no one who posts here regularly is an employment law attorney in Louisiana (or in Louisiana at all).

Thanks for the response. The emails were forwarded to the employees personal email address. Due to the nature of the type of company, printing the emails was not possible (a common printer where the offenders would see them being printed) and to save to a usb drive would have possibly alerted IT dept. Forwarding the emails was the only option the employee thought they had to protect themselves. I just jointed this group and was unaware of who or what kind of people would respond, or where they are located, or what their level of knowledge is regarding this topic. So no way to know unless I just asked. Having done so, I'm realizing a clear cut answer may not simply be possible without providing additional information about the case, which I cannot provide. Thanks.

 

[Zigner]

I'm realizing a clear cut answer may not simply be possible without providing additional information about the case, which I cannot provide. Thanks.

Even with additional information, you wouldn't get a "clear cut answer". You have an attorney, so listen to your attorney.

 

[army judge]

The attorney on this case believes the taking of the documents to prove the employer violated laws should trump the breaking of company policy. But I was hoping to get others' opinions as well

You trust the attorney you've retained.

Seeking CONTRADICTORY information from strangers is foolish and unproductive.

If you distrust your attorney, fire her, and hire one you can trust.

Second guessing the strategy of your attorney does nothing to aid your case.

You're undermining yourself.

Remember, free information is worth what it costs, nothing.

 

[adjusterjack]

The attorney on this case believes the taking of the documents to prove the employer violated laws should trump the breaking of company policy.

I'm willing to throw 2 cents worth of dust here and agree with your attorney.

What does "trying to retroactively fire" mean?

OP appears to have explained that theory in the post immediately preceding your question.

I was under the impression this was legal in Louisiana. I.e., an employer discovers you violated policy and therefore, for the purposes of litigation (Federal Court) can retroactively fire you back to the date the violation occurred so as to bar you from potentially seeking more back wages.

I can understand the theory and can see why an employer might want to do that. Perhaps to recover wages already paid or rescind benefits like matching contributions to a 401(k) plan. In a quick search of the internet I haven't found any resources addressing the issue.

 

[cbg]

If you are looking for a law that says, "When X, Y, and Z happens an employee may not be disciplined/fired for the violation of the related company policies", there isn't one.

There may, however, be extremely fact-specific, subject to state law, situations in which that may be the end result.