When you fire or otherwise discipline an employee for breaking a work rule, can you show he knew about the rule? What about his co-workers and supervisors? Did they interpret the rule the same way? If not, you may have a hard time justifying disciplining one employee for breaking the rule.
Plus, the disciplining manager may be called to testify about other employees he disciplined or didn’t discipline, and whether they understood the rules. Then, a lawyer may be able to use any confusion to show the disciplined employee should have been excused for not understanding it either.
Recent case: Sears fired Willard Keene after his boss accused him of discounting merchandise in violation of Sears’ rules on discounting. But the same boss apparently ignored it when other associates also allowed discounts. Those employees gave conflicting descriptions of when Sears allowed discounting.
Keene filed an age-discrimination lawsuit. In pretrial proceedings, the court said Keene could call the manager to the stand to ask him about other employees’ interpretations of the discounting rules. Plus, the manager would have to answer questions about his own interpretation of the rule. Any inconsistencies will help Keene explain why he didn’t think he did anything wrong when he gave discounts. (Keene v. Sears, Roebuck & Co., No. 05-828, DC NJ, 2007)
Bottom line: Some rules are so obvious they don’t need to be stated. Thus, an employer clearly could punish an employee for stealing merchandise even if there is no specific rule against it. But when rules deal with how one does one’s job, rather than with clearly and obviously illegal conduct, you should be prepared to show that employees understand what’s OK and what’s not.
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