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Courts will understand: Feel free to punish differently for misconduct that appears similar

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in Firing,HR Management,Human Resources

When companies draft their employee handbooks, they often strive for certainty. Employees want to know what the rules are and employers often oblige with draconian, zero-tolerance rules.

No wonder managers often try to apply all the rules equally in all situations.

But the smart money is on flexibility. Short of violent or threatening behavior, chances are that gray areas exist—even for seemingly clear-cut rules like “no stealing.” While supervisors may think their safest course is to harshly punish every breach, that can lead to negative outcomes like efforts to hide mistakes, low morale and fear.

If what you fear is litigation, rest assured that courts understand flex­ibility. Judges are used to determining sentences based on the unique facts of each case.

They fully expect employers to do the same. They won’t hold it against you if you fire one employee while giving a second chance to another employee who broke the same rule—as long as you can explain why you treated the violations differently.

Recent case: David Carson, who is black, worked for Patterson Dental, a company that distributes supplies to dentists and veterinarians. His job was to buy tools and supplies for the Columbus branch. He used an American Express card for some purchases and arranged for direct company billing for other transactions.

Carson’s routine was to submit an expense report for all card charges. The company then paid Carson; he, in turn, paid the American Express bill when it arrived. For one purchase, Carson thought he placed an order using the American Express card and submitted the amount for reimbursement. However, the vendor sent a direct bill to Patterson Dental.

The company reimbursed Carson, but there was no corresponding charge on the card statement. As a result, his account had a surplus. He claims he mentioned the problem to his supervisor, who allegedly told him not to worry about it. (The super­visor would later deny ever saying that.)

Months later, someone in accounting pointed out the apparent discrepancy: two payments for the same thing—one directly to the vendor and another to Carson. His supervisor emailed him about the problem, but Carson ignored the email for days. Finally, he tried to explain the matter, only to be fired for violating a company rule against dishonesty. He never made an attempt to return the extra money.

Carson sued, alleging that two white employees who broke the same rule were not fired.

But Patterson Dental explained why. One employee had accidentally run her corporate card for a personal purchase, but had immediately tried to correct the error and reimbursed the company. The other employee used his corporate card to buy gas for his car. He also realized his mistake almost immediately, reported it and reimbursed the company.

Neither waited for Patterson Den­tal to discover the transactions or hesitated to make things right.

The 6th Circuit Court of Appeals said the company had adequately explained the different punishment for similar rule violation. It dismissed Carson’s case. (Carson v. Patterson Dental, No. 09-4559, 6th Cir., 2011)

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