Where an employer discovers, after termination, misconduct that would have justified discharge, the evidence does not defeat liability but limits the remedy.
Liability unaffected. The employer’s actual motivation at the time of the decision governs whether the discharge was unlawful. Later-discovered grounds cannot retroactively justify it.
Remedy limited. Reinstatement and front pay are generally unavailable, and back pay is cut off as of the date the employer discovered the misconduct.
The employer’s burden. To show that the wrongdoing was of such severity that the employee would in fact have been terminated on those grounds alone, had the employer known of it at the time. Evidence of consistent treatment of comparable misconduct is required; an assertion that the employer would have fired the employee is not enough.
Typical subjects. Resume falsification, undisclosed criminal history where material, misuse of company systems, and competing during employment.
Discovery. Employers routinely seek this evidence, and requests for the employee’s subsequent applications, tax records and personnel files from other employers are common. Courts limit fishing expeditions absent a basis.
Practical caution. Terminating an employee after discovering misconduct uncovered in litigation is retaliation, and the doctrine does not authorise it.