Employment & Labor Insider

There was a court decision last week from my home state of North Carolina that left me shaking my head.

A social worker sued her ex-employer, a non-profit, claiming (among other things) that she was fired for complaining that the employer didn't comply with requirements of the U.S. Department of Housing and Urban Development. In addition to denying those allegations, the employer counterclaimed against her, alleging that she was stealing gift cards intended for HUD clients.

As the case progressed, the plaintiff's attorney threatened to go after the employer for sanctions. In support, she produced an email supposedly from her supervisor authorizing the plaintiff to provide the gift cards to HUD clients but also to assemble 300 pandemic relief kits that included gift cards. Which, I guess, would have explained all the missing gift cards. The email was dated March 27, 2020.

The employer did some sleuthing. The supervisor denied having ever sent the email. (Sure.) The IT guy looked on the server and couldn't find the email anywhere. (Probably not looking that hard.) The employer then hired a computer forensic expert with whom it had no prior relationship. The forensic guy monitored the IT guy as he searched for the email and confirmed that the email really was nowhere to be found. (Hmmm.)

The IT guy also found some emails that were sent by the same supervisor around the same time, and her signature block on those emails didn't match the signature block on the March 27 email. (HMMMM.) And the March 27 email had a 50th anniversary logo on it that the employer had not started using until August of that year. (Ding! Ding! Ding!)

Apart from those little discrepancies, the March 27 email seemed to be perfectly legit.

The employer presented all of this to the judge and asked him to dismiss the plaintiff's claims and grant a default judgment on its counterclaims. The judge didn't go quite that far, but he did do this:

• Granted default judgment to the employer on its counterclaims.
• Struck the plaintiff's request for punitive, liquidated, and treble damages.
• Ruled that the plaintiff could not use the March 27 email in support of her case.
• Ruled that the employer could use the March 27 email to attack the plaintiff's credibility and that the plaintiff was "estopped" (prohibited) from claiming that the email was authentic.
• Awarded attorneys' fees to the employer.

What a great idea to fabricate that email! You go, girl!

Fabricating emails or text messages -- whether it's to save one's behind or sabotage a rival -- is dishonest and immoral. But besides that, it's stupid. I am sure there are skilled fakers out there who know how to do the job right. (Not an endorsement.) But amateur fakers mess up in ways that almost anyone can spot.

I've had a couple of cases with fake evidence, although neither went as far as this one did. In one case, an employee claimed that she had performed a work-related task on a certain date, and forwarded a "contemporaneous" email as proof. The only problem was, the email was dated in the future. (When the employee pasted in the header from another email, she forgot to backdate the year.)

The other case involved sabotage. An anonymous employee sent texts to an executive claiming that she'd been sexually harassed by the CEO. The client suspected that the messages were really coming from the executive, who had been passed over for the CEO position. In that case, the things that made us all go "hmm" were (1) the CEO was a genuinely good guy who was unlikely to have behaved in such a way, (2) the executive had a motive, and (3) in his other written communications, this executive made the same unique spelling errors as the "anonymous employee." Thus began an investigation, and with the help of a computer forensics expert we were able to determine that the "anonymous employee" and the executive were one and the same person.

(You'll be glad to know that the executive/"anonymous employee" was -- were? -- fired.)

So, plaintiffs, don't try to win your case this way. You will get caught. Even if your lawsuit isn't tossed immediately, you'll only persuade the court and a jury that your employer was right to fire you.