By Andy Volin
Employees sometimes secretly record meetings with supervisors, trying to obtain information they can use to bring claims against the company. This tactic recently backfired for a Colorado employee. The company had a policy prohibiting recording, and when it found out during discovery in the employee’s lawsuit that he had made the recordings, it argued it would have fired the employee if it had known he had violated its policy.
This argument is known as the “after-acquired evidence” defense. It was once a complete defense to employment claims, but a 1995 Supreme Court decision restricted its application so that typically it only cuts off damages as of the date the employer learns of the information. That was the rule applied to the Colorado employee, who cannot recover damages after the date he disclosed the secret recordings. Turner v. Home Depot U.S.A., Inc., No. 11-cv-02085-CMA-MJW (D.Colo. Oct. 16, 2012).