Here’s a tip if you are revising your employee handbook: When it comes to discipline, make sure you give yourself some flexibility to deal with unusual circumstances.
For example, if you want to use, be sure to account for the rare situations that may warrant immediate suspension or discharge.
You don’t have to be specific. Consider adding this statement: “These rules are guidelines only. Depending on the circumstances, even a first offense may be a dischargeable event.”
Recent case: Calvin Chism, who is black, worked as a firefighter. The fire department has a disciplinary policy calling for termination of employees with repeated or felony criminal convictions. The handbook also requires employees to behave well both on and off duty and specifies that the list of dischargeable offenses (such as felony convictions) is not exhaustive.
Chism has a long history of run-ins with the law. He had been arrested for battery, domestic battery, assault, aggravated assault and harassment by communication over the course of his career.
When Chism was arrested yet again—this time on charges of receiving stolen property—the department fired him.
He sued, alleging race discrimination and claiming that white firefighters who had been arrested for drunken driving hadn’t been fired. Plus, it turned out that the charges against him were dropped, meaning he still had no felony convictions. That, he argued, meant he should not have been terminated.
The court disagreed. It pointed out that the handbook specified that examples of conduct justifying discharge weren’t exhaustive and that employees were required to exhibit good behavior on and off duty. A long history of repeated arrests violated that policy, even if none of the arrests led to a felony conviction. (Chism v. Curtner, et al., No. 09-2632, 8th Cir., 2010)