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‘Last straw’ needn’t be egregious to justify firing

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in Discrimination and Harassment,Firing,Human Resources

Employers often bend over backward to give employees second chances. But when second chances turn into third and fourth chances, you'll probably lose your patience and send the employee packing.

Some employers, however, wrongly believe that they must cite a particularly serious behavior or performance problem as the last straw before termination. As a new ruling shows, that's simply not true. You don't have to wait until the person commits an egregious rule violation. Firing an employee on the totality of his or her record, or on one violation, is legitimate. Just make sure you treat all employees in the same manner.

Recent case: Forklift operator William Brokenbaugh, who is African-American, was constantly pushing the disciplinary envelope. He tested positive for cocaine three times in his 13 years at the company. Each time, he went through rehab under a drug and alcohol treatment agreement. He threatened a co-worker, caused a forklift accident and was warned about substandard work.

But Brokenbaugh wasn't fired until he left work with a headache and someone spotted him cleaning his car when he was supposed to be home sick. He filed a race discrimination suit, but a federal court dismissed his case, pointing to ample evidence justifying Brokenbaugh's discharge.

The court said the employer didn't have to wait for another positive cocaine test or threat. Firing him based on his total disciplinary record was legal, especially since no other employee had kept his job with a similar record. (Brokenbaugh v. Exel Logistics, No. 04-4106, 3rd Cir., 2006)

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