Wrongful termination cases involving sabotage are probably the most difficult to prove but also the most likely to result in massive, multi-million dollar damage awards, including an award of punitive damages. Sabotage can come in many forms - so many that a complete list of all the ways in which it can be achieved would be impossible to make. However, speaking generally, sabotage involves deliberate conduct designed to subvert, obstruct or destroy. Just a few examples of sabotage I have seen in my practice involve: 1) providing an employee with a work schedule and then disciplining the employee for not being at work on a date and time the schedule provided shows the employee was not scheduled to be at work; 2) issuing a "write up" to an employee for alleged misconduct on a particular date, and then altering the date after learning the employee was not at work on the date in question; and 3) putting obscene material on an employee's computer while the employee is away from the desk, and then getting a manager to go search the employee's computer for something else knowing the manager will spot the obscene material and take disciplinary action.
Another great example of sabotage can be found in the Oscar Award winning movie Philadelphia. In Philadelphia, actor Tom Hanks plays a lawyer with HIV/AIDS who is fired shortly after his condition begins to outwardly manifest itself through skin lesions. The law firm's stated reason for termination is failure to complete important legal paperwork by a certain deadline. In reality, Tom Hanks' character completes the paperwork by the deadline, but the law firm "loses" the paperwork to make it appear as if it had never been completed. The movie Philadelphia is loosely based on a true story.
With technological advances, sabotage is becoming easier to prove in some respects. Most computers store what is called "metadata", which includes information about computer-generated documents such as the date and time it was drafted or modified. In modern lawsuits, it is possible to discover metadata in order to show certain computer-generated documents were created or modified after-the-fact in an attempt to cover up the truth. Metadata can also be used to show certain computer-generated documents do exist or at one time existed, which can be especially powerful evidence where there is a dispute over the existence of those documents.
Despite these advances in technology, sabotage remains difficult to prove. Generally speaking, the word of one person against the word of another will not be enough to convince a judge or jury. The key to proving sabotage is documentation and witnesses. Where computers or other electronic devices are involved in the sabotage, a computer forensics expert is essential.
Sabotage comes in many forms. The one common denominator in sabotage is that the conduct, no matter what form it takes, is cruel and malicious. Accordingly, where the employee can prove sabotage, the employer faces massive liability.
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