If a company requests or demands that an employee create a story or change a document to bolster the company’s posture in a lawsuit, the worker must refuse. Falsifying evidence in a legal proceeding is a crime and it is a crime for anyone who participates in such acts.
There are many variations of falsifying information that may occur in a business litigation situation. Falsifying a writing created by someone else may be the crime of forgery even if it does not involve the signing of another’s name. For example, in a contract lawsuit the plaintiff states the contract gives him certain rights against the defendant company. Defendant company requests its worker to change a written term of the contract (or insert a different page or a new appendix) so that it appears that changed term was an original term when the parties signed the contract. If the worker does so, he has committed forgery even though he has not signed the plaintiff’s name to the contract.
Testifying falsely in an official proceeding may constitute the crime of perjury or a false swearing. Please note that an individual’s testimony that “I don’t remember” when he does in fact remember is as false as misrepresenting how certain events actually transpired.
Altering, destroying, concealing, or removing evidence or creating false evidence to hide the truth in an official proceeding or investigation may also constitute the crime of falsifying evidence. For example, shredding documents with the intent to prevent plaintiff from getting damaging evidence against your employer would constitute the crime of falsifying evidence. This type of spoliation of evidence, when presented to the court in the civil trial, may also result in sanctions against the defendant including the possibility that a verdict for the plaintiff may be entered on all or part of his claim without a trial because of the spoliation.
If a worker (including a company officer or other management) attempts to induce a person to provide false testimony, withhold testimony, or to make themselves absent from any proceeding or investigation to which he has been summoned, this can constitute the crime of witness tampering. You do not have to intimidate or threaten the witness to be guilty of this crime.
If a worker is asked by an employer to assist in a criminal act, the worker must refuse. It would be wise to immediately seek legal counsel to both determine the best way to inform the appropriate governmental authorities and to be advised of appropriate legal remedies, including rights under the New Hampshire Whistleblowers’ Protection Act, RSA-275-E, should the employer retaliate against that worker.
If a worker has been instructed by her employer to falsify her time records to only show up to 40 hours per week rather than overtime, for which she is entitled to overtime pay equal to 1½ times her hourly rate, she still has a valid overtime claim and she should speak to an attorney about her options. The employer is responsible for ensuring accurate time records are kept and if the worker, at the employer’s direction, is indicating fewer hours on her time records than actually worked, she is the victim not the wrongdoer and should be treated as such by applicable state and federal governmental agencies and the courts.
Falsifying evidence is a crime in both civil or criminal proceedings. Employers must understand that, in addition to possible criminal penalties, the consequences of the discovery of an attempt to falsify evidence by the opposing party in civil litigation might be that this becomes the best evidence against the employer. It may be used to show legal fault. In certain situations it may even entitle the opposing party to a range of court-imposed sanctions including a judgment in that party’s favor, an award of all or a portion of attorney’s fees incurred by that party, and/or an award of punitive damages.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].