Document Type

Article

Disciplines

Labor and Employment Law

Abstract

When a worker sues an employer, the employer sometimes learns thereafter that the worker had committed some misconduct at the time of hire or while on the job. In those cases, most American work laws provide the employer with a defense that precludes employer liability, or at least limits remedies, if the employer shows that, had it known of the worker’s misconduct at the time of its allegedly wrongful act, it would have fired the worker because of that misconduct. This Article evaluates the prevailing arguments for and against the employee-misconduct defense as it appears in the National Labor Relations Act, federal and state employment discrimination and retaliation statutes, state contract and tort law, as well as state workers’ compensation statutes. It finds that virtually all of these arguments (both for and against) are incomplete, incoherent, or rely on unverified empirical premises. This finding implies that, though pervasive, virtually no sound reason currently exists for adopting the defense or (apart from stare decisis) continuing to apply it.