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Unpacking the Employee-Misconduct Defense

University of Pennsylvania Journal of Business Law 14(4) (2012): 867-925

59 Pages Posted: 2 Jul 2012  

Sachin S. Pandya

University of Connecticut - School of Law

Date Written: July 1, 2012


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.

Keywords: after-acquired evidence, discrimination, employee misconduct, resume fraud

JEL Classification: K31

Suggested Citation

Pandya, Sachin S., Unpacking the Employee-Misconduct Defense (July 1, 2012). University of Pennsylvania Journal of Business Law 14(4) (2012): 867-925. Available at SSRN:

Sachin S. Pandya (Contact Author)

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
(860) 570-5169 (Phone)

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