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Sterling Employment Law

Whistleblower uses metadata to show negative review was backdated

In February 2013, the general counsel of a biotech company called Bio-Rad Technologies was concerned. He had been general counsel for the firm for 26 years, but now he suspected that someone from Bio-Rad may have given kickbacks to Chinese government entities and delivered products to certain Chinese customers without billing them. It seemed the company might have violated the Foreign Corrupt Practices Act.

He sent a memo to the company's auditor, calling an investigation into whether there was bribery going on -- and whether senior management was involved. Two days later, the CEO sent a letter to HR recommending the lawyer be placed on administrative leave. On July 9, he was fired.

He was told the termination had nothing to do with the bribery allegations, which by now were being investigated by an outside law firm. He was told it was due to "continuing dysfunctional relationships" with colleagues, the board of directors and the audit committee. With a glowing performance review from just six months before -- which included a raise and a promotion -- the attorney suspected he was fired in retaliation for blowing the whistle.

'He scared people,' defense attorney argues in court

It's illegal to retaliate against employees who report possible wrongdoing, whether internally or to government officials. When the former general counsel sued Bio-Rad for wrongful termination, their best available defense was to claim the firing was based on entirely different reasons. They chose to paint him not only as an aggressive, terrifying presence.

"He's had screaming fits in the office; evidence will show he pounded his table and shook his fist at his colleagues," said Bio-Rad's attorney during opening arguments. "He scared people. The company actually conducted a ... threat assessment based on his outbursts."

However, no one from Bio-Rad was able to produce any documented instances of improper behavior, except for the former general counsel's April 2013 performance review, which apparently spelled out every reasonable justification for the firing.

One problem: Metadata from that performance review showed it had been written on July 9, more than a month after they fired him.

If true, this is proof of what we in employment law call a "pretext." Employers know it's illegal to retaliate against whistleblowing employees, but they also know they can fire people for other reasons. Sometimes companies pretend to fire people for a legitimate reason when everyone knows that reason is a pretext. In cases like this, it's up to the judge and jury to decide who is telling the truth.

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