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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19169
Experience:  Employment/Labor Law Litigation
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Yesterday I was terminated for "leaking" confidential

Customer Question

Yesterday I was terminated for "leaking" confidential information. My employer stated upon termination the confidential information included resumes, termination information, and leave information. I asked for all evidence and documentation against me and the employer stated it was proprietary information and that they could not and would not provide me with the evidence. I was terminated at 11:30am and at 5:11 someone used not only accessed my personal email but used my email to forward and email to the CEO. The advised me there was an ongoing investigation after termination and I have been advised they are discussed the terms of terminations with other staff members.
Is an employer allowed to not provide and evidence against me?
Is an employer allowed to access and use my personal email even if on company property?
Are resumes considered confidential information? Even if it posted on a public forum like LinkedIn.
What legal rights do I have?
Submitted: 1 year ago.
Category: Employment Law
Customer: replied 1 year ago.
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Expert:  Allen M., Esq. replied 1 year ago.

Yes, the employer is not required to give you the evidence against you, because they are not a criminal law court and you have no legal right to confrontation of the witnesses or evidence against you (as you would in criminal court).

If the email is on their computer system, they can access it and use that against you.

Resumes can be considered confidential information by the employer. There isn't a federal statute making them confidential, but if the employer doesn't wish for them to be released that can be a terminable offenses.

In terms of legal right, unless you had a contract of employment stating that you could only be terminated for cause, your employment is "at will" and can legally be terminated at any time, with or without cause. Unless you can allege the employer here had a different motivation, such as your race, religion, gender, age, disability or recent FMLA use, the termination would be legal.

Customer: replied 1 year ago.
how do I prove that I was actually terminated for the cause the have listed if I am not provided the documentation. Also, the practice of the company has been to provided any all documentation against an employee. Can an employer use my personal email? I understand they can access anything on their computer system but to use on my behalf seems wrong. Nothing in the policy manual or other documents states resumes are confidential. Medical records, ssn, race, performance records, salary, ect are stated as confidential material. None of this was included with the resumes. What I did not include was that I felt there was retaliation against me after I voiced my concerns of unfair pay and promotion practices. I also pointed out an apparent racial issue involving myself. There has never been an issue with my performance up to date. There is no other evidence against me other than the email of resumes that were sent that someone from the company forwarded from my personal email after termination.
Expert:  Allen M., Esq. replied 1 year ago.

As for proving why you were actually terminated, it doesn't actually legally matter unless you can prove that the reason they actually terminated you was illegal. That's your burden. Even if the reason they gave is not true, that doesn't matter. It doesn't have to be true.

Yes, they can use your personal email, if located on their system.

It does not matter that they haven't stated previously that resumes are confidential. They can just personally believe that they are confidential. Again, without a contract of employment, they don't need a good or even valid reason to terminate you. They could literally terminate you for absolutely no reason and that would be legal. They could terminate you for liking the color blue too much and that would be legal. They don't need to have had an issue with your performance or to have written you up before.

Now, you mention retaliation about your complaints concerning unfair pay practices. If you made a complaint about discrimination in wages due to race, religion, gender, age or disability, then yes that would have been an illegal basis for termination and you could file a complaint with the Equal Employment Opportunity Commission.

Customer: replied 1 year ago.
Little background I was the HR Generalist for the company in reference since 2/2015.Here is the situation 10/13 I meet with my supervisor (COO and Owner) to discuss my concerns of a promotion of a manager that had numerous performance issues and complaints against her. Also this position was not posted internally to give all employees an opportunity to apply. The employee promotes does not meet minimum qualifications of the position she is currently or the position she is being promoted to. During this meeting I was told by my supervisor that he was ok with loosing good employees over this decision. My supervisor took this conversation as me wanting more money. I was advised to put together my current duties vs the previous HR Director duties. I was the head of the department and has an employee reporting directly to me.On 10/15 I sent the requested information to my supervisor. To include my resume and the job description of the HR Director. I was never given an a job description so I included the job description of the position they had posted before asking me to come back to the company. (I previously worked for the company for 2 years until 5/2013).On 10/23 I was brought in to meet with my supervisor and the CEO/Owner to discuss my position and pay. I was given a $5000 increase and told 6 months from my anniversary date I would receive another $2,500 increase. I was told I was an asset and they didn't want see me go.On 10/28 I meet with the Owners again this time to discuss the perception of me being close with one of the Managers. I was told perception was reality and I could make all of this go away by basically having a friendship with is employee. I was told this was not something against my performance but a grooming/learning opportunity. Nothing would be documented or put to file. I was advised an employee complained that they didn't feel they could come to me (HR) because my relationship with a Manager. I advised I felt I was being picked on because there were other people within the organization that had friendships with those of individuals to include friendships with direct reports. I advised that I should be able to discuss certain things with another manager without a problem. I also advised I felt there was an issue with 4 black women eating lunch together. Because it was not an issue when I ate lunch with the accounting staff (mainly white). Immediately one on the owners said no that's not it because ex employee didn't file the complaint. Ex employee is the same employee that got promoted. I said was not accusing her of filing the complaint. I was then told it was a black girl that complained. During this conversation I brought up my concerns of them wanting to demote someone without actually documentation. I was told it was partly my fault there was no documentation even though this employee didn't report to me.Then later in the day I sent a culture survey out to get feedback from the staff on how the company was doing. The very next morning my supervisor asked for the survey questions and link. Which I sent.Yesterday at 11:30am I was called in with owners and told I was being terminated for violating the HR Confidentiality agreement I signed. I was told I was "leaking" resumes, termination, and leave information. I collected my things and left I requested a copy of all evidence and documentation against me. I was told"The evidence we have uncovered and continue to uncover through our ongoing, internal, forensic review is proprietary and will not be shared given that it also includes information that is confidential to other employees. You can rest assured this evidence includes several compelling examples of her violation of the HR Confidentiality & Professional Ethics Agreement (executed on February 2, 2015), which provides as follows:Human resource employees who intentionally disclose confidential information in violation of this policy or for personal gain shall be terminated immediately. Unintentional disclosure shall result in disciplanry action.In short, we are compelled to terminate employment based on the several violations of this policy discovered during our ongoing forensic review, but we cannot (and will not) share this information with you.Please ensure all future correspondence is in writing."At 5:11pm someone went into my personal email from the company property to access my email and forwarded an email to one of the owners. This email contained resumes of employees sent to another employee. The actually application was not included, no salary, or performance related documents were included.Other than the resumes no there is no other evidence of confidential information being "leaked". Policy does not state resumes are confidential. These same resumes can be found on LinkedIn. The only other evidence are skype messages between myself and two other employees complaining about the unfair practices.
Expert:  Allen M., Esq. replied 1 year ago.

The retaliation that you appear to be mentioning here is not related to a complaint that you made to the employer concerning race, religion, gender, age, disability or FMLA discrimination against yourself. Therefore, it would not be an illegal form of retaliation.

You also continue to state that there was no written policy with the employer stating that the resumes were confidential. I have already said before that is legally irrelevant. Unless you had a contract of employment that specifically and unequivocally stated that you could ONLY be terminated for cause, they need absolutely no reason to terminate you. All of your additional facts, while certainly indicative of an unprofessional work situation, DOES NOT change the fact that you are an "at will" employee and can legally be terminated without cause.

I know this is not what you want to hear, but you have stated no legal basis for a challenge to the termination.

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