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Track your fair and equitable discipline to prove you don’t discriminate

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in Discrimination and Harassment,Firing,Human Resources

Even an employee who was terminated for good reasons can win a discrimination lawsuit if she can show that someone outside her protected class wasn’t fired for the same transgression. That’s why you must track all discipline.

Recent case: Rosalind managed a Kmart store in Wilkes-Barre. She was fired when the company concluded she let subordinates work off the clock (paying them with cash ­vouchers and gift cards) and gave them her own version of “comp time” by allowing them to clock in without working.

Rosalind sued, alleging age and sex discrimination.

She explained that she manipulated the system so she could meet the goals the company set for her payroll budget and still keep the store staffed as needed.

The court quickly threw out her case when it became apparent no one else who had committed similar rules violations had kept their jobs. In fact, Rosalind’s actions were unique. (Norman v. Kmart, et al., No. 11-3560, 3rd Cir., 2012)

Final note: Kmart had clear rules against allowing subordinates to work off the clock and otherwise violating the Fair Labor Standards Act (FLSA).

What Rosalind did exposed the company to an FLSA lawsuit. It’s illegal for employers to encourage or allow work without pay. Nor can a private employer avoid paying overtime to nonexempt employees by substituting comp time.

The company was absolutely right to fire her.

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