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The short answer is it depends. There are very limited circumstances where such evidence can be used, and your employer would be the burden of convincing the court that such evidence of prior bad acts falls through that narrow window. Whether the court will allow such evidence involves a case-by-case analysis, in which the court will determine if the evidence is relevant or otherwise admissible under the rules of evidence. Employers always want to use reports of criminal acts of which employees were not convicted to show that employees are not trustworthy in their reasons for suing for wrongful termination.  Reports of criminal acts are referred to as prior bad acts and those may be admissible in court.

Because in general, Rules of Evidence prohibit employers from using evidence of an employee’s character, whether by opinion or reputation, or evidence of specific instances of conduct to prove employees’ conduct on a specified occasion. This is called using evidence of prior bad acts. And there are rules for bringing it up in court.

This blog tackles the issue of employers using allegations of criminal activity to question employees’ believability and poke holes in their reasons for suing for wrongful termination.

Let’s look at the recent case of Jampa Gonpo, on behalf of himself and others similarly situated v. Sonam’s Stonewalls & Art, LLC; Sonam Rinchen Lama, —F.4th — (2022) 2022 WL 2763131.  Lama fired Gonpo in February 2016 shortly after Gonpo was accused of raping Lama’s then 16-year-old daughter. Police investigated the accusation of rape and charged Gonpo with the crime. While the police investigated Gonpo, Gonpo filed a lawsuit against Lama and the business for wage and hour claims. Gonpo alleged that Lama and the business violated employment laws by withholding all or part of his earned wages and failing to comply with the Fair Labor Standards Act (“FLSA”) and related state laws. (Best Law Read How Do You Recover Stolen Wage?) Eventually in the criminal matter, Gonpo was put on trial, but ultimately was not found guilty of rape or any crime.

What is an example of employers using an accusation of criminal acts to attack an employee’s credibility?

Best Wrongful Termination Law Firm Answer: In Gonpo’s wage and hour claims against Lama, Lama tried to introduce at trial evidence of the rape allegations to show that Gonpo sued Lama for stolen wages only to manipulate the criminal rape prosecution and put pressure on Lama’s daughter to drop the criminal case. Gonpo fought to have the evidence that he was accused of rape excluded from the stolen wages trial.

How can an employee exclude evidence of criminal allegations from a wrongful termination trial?

Best Wrongful Termination Law Firm Answer: The courts have long held that bad acts evidence could cause a jury to condemn an employee based on passion or bias. United States v. Jones, 748 F.3d 64, 71 (1st Cir. 2014). Federal Rule of Evidence 403 protects against a jury using bad act evidence to find against an employee because it is disgusted by his criminal past rather than the issue put in front of the jury at the moment. Id.

In Gonpo’s case, he fought to have evidence of the rape excluded from his stolen wage trial because he knew that if the jurors believed that he had a legitimate wage claim, even without his motive questioned, the jury might find against him out of disgust for his alleged bad acts. The implication here was that Gonpo was financially burdening the family of an alleged rape victim with his stolen wages lawsuit. This bias is exactly what Fed. R. 403 prevents and the court in Gonpo agreed. It properly excluded the evidence.

Fed. R. 403 is not a lone ranger in this battle to protect employees. Federal Rule of Evidence 404(b) prohibits the introduction of a person’s prior bad crimes or bad acts when used “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” This rule does not completely prohibit prior bad acts evidence. United States v. Gentles, 619 F.3d 75, 86 (1st Cir. 2010).  Evidence of prior bad acts may be admitted if it passes a two-part test. Id.

First, the bad act evidence must have “special relevance” meaning that it is not admitted solely to show predisposition. United States v. Doe, 741 F.3d 217, 229 (1st Cir. 2013). The bad act evidence must be designed to “prov[e] motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

Second, if the evidence does meet the ‘special relevance’ meaning, it can still be excluded from trial if “its probative value is substantially outweighed by a danger of” among other things, “unfair prejudice.” Fed. R. Evid 403; Doe, 741 F.3d at 229.

In Gonpo’s case, the court considered the possibility that the rape allegations motivated Gonpo to bring his stolen wages lawsuit and acknowledged Lama’s argument that the rape allegations motivated Gonpo to bring his stolen wages lawsuit. But the court concluded that the evidence of the rape allegations should be excluded from trial because it would unfairly prejudice the jury against Gonpo. Gonpo “has the right to have a jury assess his claim without unfair prejudice, regardless of his reasons for asserting it.” Gonpo at *3. “Moreover,” the district court said, where a plaintiff is entitled to relief, his “motives for bringing suit are immaterial.”Gonpo at *2.

What should I do if I was wrongfully fired, and my employer threatens to bring up my past bad acts?

Best Employment Lawyer Answer: Because every case is different, you need to consult an employment law firm regarding the facts of your specific case and your specific rights. Although an employer has the right to bring up past bad acts in certain situations, what should you do if you think your employer will try this with you? Do you want to know if you can exclude your past bad acts from trial after you were fired? Best Anti-Discrimination Attorney Answer: After you have been wrongfully fired don’t hesitate, call the right attorney to schedule a free confidential consultation. (Read: What is the Spitz No Fee Guarantee?) Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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