tag:blogger.com,1999:blog-5195531732750182551.post1583906159298994753..comments2024-01-10T03:22:18.004-08:00Comments on Bryan Schwartz Law: Are You Accused of Having “Unclean Hands?”Bryan Schwartz Lawhttp://www.blogger.com/profile/10509090710437656270noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5195531732750182551.post-35223257726925455562012-04-27T09:44:55.038-07:002012-04-27T09:44:55.038-07:00The short answer is that the notion of after-acqui...The short answer is that the notion of after-acquired evidence certainly comes up with federal employees, too, as a bar to certain types of relief. 5 CFR 315.805 talks about terminations for pre-appointment conduct, and there are cases where people who raise EEO complaints or MSPB appeals wind up having to fight off terminations based upon problems with their initial employment applications.Bryan Schwartz Lawhttps://www.blogger.com/profile/10509090710437656270noreply@blogger.comtag:blogger.com,1999:blog-5195531732750182551.post-74783186911573111722011-11-25T03:17:21.313-08:002011-11-25T03:17:21.313-08:00How would these "unclean hands" and &quo...How would these "unclean hands" and "after-acquired evidence" cases apply to Federal employees?<br /><br />Is McKennon sufficiently broad to encompass federal cases, do other federal cases exist, or can California cases be used as persuasive precedent especially if the actions took place in California?Hot Samhttps://www.blogger.com/profile/10848778804406692799noreply@blogger.comtag:blogger.com,1999:blog-5195531732750182551.post-41900961154642396982011-11-25T03:06:25.807-08:002011-11-25T03:06:25.807-08:00Great post. Thanks.
It's scary to learn how m...Great post. Thanks.<br /><br />It's scary to learn how much power an employer has. Even when you catch them with their pants down, they can use their Big Brother eyes to seek dirt on you, and fire you on any pretext that seems reasonable.<br /><br />For an at-will employee, this threshold is fairly low. For implied contracts, contracts, and public employees, the level of seriousness can easily jump up through subjective judgment. Courts are loathe to interfere with employer discretion based on good faith. <br /><br />It would be important to examine the employee's prior work record, prior warnings and counseling, and whether the Douglas Factors were used in the decisions.<br /><br />Even if an employee has a record of prior counseling for errant acts, if it was oral or isn't reflected in the performance evaluation, one could imply that it was relatively inconsequential to the employer at that time, and a repeated act is only worthy of a lesser punishment.<br /><br />The legally sophisticated employer will hold on to records of past indiscretions and use the property right over their electronic equipment to go on a witch hunt for anything remotely resembling the past conduct. <br /><br />So the plaintiff's attorney should examine whether the employer had reasonable suspicion for the more recent search, or if the employer knowingly violated privacy rights. Even if the employer had an unfettered right to examine, they did so with tortious intent, and nothing good should come from something bad.<br /><br />If so, the punitive damages should be compounded - an unlawful act intended to defend against another unlawful act. The employer's hands are dirty squared.Hot Samhttps://www.blogger.com/profile/10848778804406692799noreply@blogger.com