Throwing the book at a worker: A good lawsuit defense — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Throwing the book at a worker: A good lawsuit defense

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When faced with an employee who has committed numerous rule violations, do you pick the most serious one and act on that? If so, you may want to rethink that strategy.

It’s better to list every violation when disciplining a worker, rather than just the most serious one, especially if you plan to discharge the person.

Reason: If the fired employee sues you for discrimination and is in a protected class (race, age, gender, etc.), he must show that you treated others who committed the same offense more favorably.

That’s harder to do if he can’t compare himself to someone charged with the same or similarly serious offenses. In this case, “throwing the book” at employees may be your best defensive move.

Recent case: Ronald McCalister, a black sheriff’s deputy, occasionally worked off duty as a security guard.

The trouble began during a latenight shift when McCalister decided to sneak out and visit a female friend. He drove his patrol car home, donned a black sweatshirt over his uniform and started down the road in his own car.

En route to his meeting, an officer pulled McCalister over but didn’t ticket him. McCalister argued that he’d been stopped for “driving while black.” But the officer reported the incident to his own supervisor, who realized McCalister had been away from his post. He had returned to his post and acted as if nothing had happened.

The sheriff’s office charged McCalister with six workplace rule violations, including leaving an assigned work area, falsifying reports by claiming he’d worked the entire night, and negligence. He lost his job and sued.

The 11th Circuit Court of Appeals dismissed the case because he couldn’t show that others had committed similar offenses and received more lenient treatment. Most of the white officers who weren’t fired had broken just one or two rules, not six like McCalister. (McCalister v. Hillsborough County Sheriff, 11th Cir., 2006)  

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