If you classify employees as either permanent or probationary, you can apply different disciplinary standards to the different classifications. That’s true even if the employees perform the same job and violate the same rules.
You’ll need to have a rational reason for each category and specify beforehand how you handle discipline in each category. Then it’s perfectly OK to have apolicy for permanent employees, while reserving the right to fire new or probationary employees for first offenses.
Recent case: Kathy Fouse, who is black, was a U.S. Postal Service “transitional employee.” Postal Service rules allow transitional employees to be terminated for the first rule violation, while “career” employees work under a progressive discipline system with escalating penalties for violations.
Fouse got in trouble when she drove her mail truck into a telephone pole. Fouse called her boss to report she couldn’t open the vehicle door, but neglected to mention she had wrecked. The damage was obvious when she returned to the post office. The Postal Service requires employees to report all accidents immediately. Vehicles must remain at the accident site until a supervisor can arrange for an investigation.
Fouse’s supervisor concluded she attempted to hide the accident and fired her. She sued, alleging race discrimination. She noted that a white employee under the same boss was simply warned when she had a similar accident.
The 6th Circuit Court of Appeals threw out the case. It pointed out that the white employee was a career employee and different rules applied. Fouse couldn’t compare herself to the other employee, and she couldn’t prove the Postal Service treated her differently because of her race. (Fouse v. Potter, No. 06-4174, 6th Cir., 2007)
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