How Digital Forensics can Assists with Employment Lawsuits
business, and a court case can take significant time away from company management and executives. Personnel issues and the resulting investigations can impact the morale of employees, taint the reputation of the business, and result in massive consequential payouts.
Building a Defense in Employment Lawsuits with Digital Forensics
The true cost of a lawsuit varies from case to case. A company found at fault can be liable for compensation and punitive charges as well as all court and related fees. The cumulative cost can spiral into millions of dollars.
The Cuevas v Wentworth Group court case in 2016 was significant in this respect. The company was found guilty of race-based harassment of two brothers in their employment. Wentworth Group had to pay the plaintiffs $1.4 million in emotional distress damages alone. With court fees and back pay, the costs to the company spiraled to more than $2.5 million, and appeals for reduced charges were dismissed.
This was a watershed moment. The case sets a precedent for both higher costs to companies at fault and a reduced likelihood of a successful appeal against the charges.
Proving what truly happened and whether there was intent to cause harm can be a subjective process. In an era where data is everywhere, digital evidence and digital forensics can make or break employee lawsuits where such proof is required.
Types of Employee Misconduct that Can Benefit from Digital Forensics
There is a wide range of activities that can lead to an industrial lawsuit and cause problems within an organization. Some examples include:
Employee termination issues
Issues can arise at the termination of employment. In such instances, claims of wrongful dismissal, harassment, or discrimination are often raised. Disgruntled employees can retaliate if they believe they’ve been mistreated when whistleblowing. Even employees found to have taken intellectual property elsewhere, in breach of their contract, can result in retaliation against the firm. The US government deals with over 3000 whistleblowing cases a year. This causes a serious impact on the organizations and individuals involved. Digital forensics provide the evidence, such as email trails and file export activity, to back up or dispute claims.
Harassment of co-workers
According to the Workplace Bullying Institute, a shocking 19% of U.S. workers are bullied at work. Digital forensic evidence, such as chat history or behavioral markers, and expert witness testimony, can help achieve the best outcome and ensure a safe and happy working environment.
This is an area with a clear-cut case of digital forensic evidence being both available and important for a court case. Inappropriate messages found in email, texts, or messaging apps can be shown to contravene company policy or, in some cases, break laws such as those governing hate speech and sexual harassment.
The average loss per case of occupational fraud is around $1.5 million. Digital forensics capabilities serve not only as recourse but as protection and deterrence against misconduct.
Inappropriate use of social media (discussion of work-related topics)
Social media, by its very nature, is pervasive and leaves a gaping hole for security and privacy. However, it is also a rich source of admissible digital evidence.
Stealing or selling company secrets
The theft of proprietary company information can be one of the most harmful activities an enterprise endures. It’s also more common than most people think. 25% of exiting employees were found to have taken sensitive company secrets with them, potentially leaking intellectual property to competitors. Digital forensics can help build a case against the perpetrator.
Cases of Good and Bad Digital Forensic Use in Employee Lawsuits
Digital forensics can protect the organization, the individuals involved, or both. In a case of business litigation, a swift and just conclusion is desirable for everyone involved. A case can rely on the presentation of digital forensic evidence or can be defeated on the same grounds.
Use case 1: Former supermarket employees wins wrongful termination case over inappropriate messages
A supermarket worker successfully won a case for unfair dismissal after proving that the reasons for dismissal, namely inappropriate messages to an underage co-worker, had not been properly investigated. After the allegations were made against him, his employer failed to follow appropriate processes and documentation before assuming the worst and dismissing the employee. This failing was easily evidenced, and the employee was awarded around $22,600 for unfair dismissal. Better and more proactive use of digital forensics would have prevented this outcome for the company.
Use case 2: Was the Walmart whistleblower fired for speaking out?
Walmart employee Tri Minh Huynh filed a complaint against Walmart, as he had been dismissed after whistleblowing. Whistleblowing is a protected activity, and if he could demonstrate that his dismissal was related to this, then the burden of proof would fall to Walmart to show a legitimate reason for dismissal.
Unfortunately for Huynh, the evidence suggesting that the dismissal was related to whistleblowing was circumstantial, whereas Walmart was able to show what the judge described as a:
“mountain of evidence that Huynh was a poor-performing employee, and that its inclusion of Huynh in a significant round of layoffs was unconnected to any whistleblowing.”
It’s important to use digital forensics correctly, and this means using up-to-date, reliable tools wielded by experts. Unreliable evidence can mean the difference between a successful or failed court case, with the possible worst-case result that criminals could be let off of severe crimes and potentially continue illegal activities with impunity.
Putting Digital Forensics to Work, Effectively
Any serious investigation can be costly, even before court and solicitor fees and any resulting costs. In 2013, Walmart spent $509 million on a corruption probe.
Digital evidence is increasingly available, with 96% of Americans now owning a digital mobile device. More remote working and Bring Your Own Device (BYOD) policies mean that personal devices are often used for business purposes. This can offer more available digital forensic evidence, but the evidence-gathering must be legally, carefully, and expertly done. For example, in a nod to the changing nature of investigations, the United States Department of Labor OSHA has created a ‘Whistleblower Investigations Manual’ setting out standards for digital evidence in whistleblowing cases.
Modern digital forensic techniques help ensure the admissibility of evidence and are also designed to reduce the burden on the investigators. The evidence is overwhelmingly present but needs to be found and preserved. This also needs to be practicable within reasonable human resources.
Whether you win or lose, an employee lawsuit is a costly business. To build an impactful defense, you need to use the best experts and most up-to-date tools. A court case where the evidence hinges on a digital forensic investigation and presentation can be devastated by unskilled, inexperienced data gathering. Numerous real-life cases show the benefits of robust digital evidence and the risks of presenting poor-quality, often inadmissible evidence.
Digital forensic evidence must be gathered, preserved, and presented by a team of professional digital forensics experts, using state-of-the-art tools. This evidence can then be used by experienced expert witnesses to give attorneys and their clients the best chance of their desired outcome.