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Document good faith when disciplining for rule violation

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Employees who sue for sex or other forms of discrimination under the Texas Commission on Human Rights Act (TCHRA) often claim their employer based discharge or other punishment on trumped-up charges. Employers can win these cases if they have good records showing their actions were reasonable and “in good faith.”

When disciplining rule-breaking workers, clearly state which rule they broke and what efforts you made to check the facts. Plus, look at punishments issued to other employees who broke the same rule and verify equal treatment. Your good records probably will mean a quick dismissal before the case goes to trial, saving you thousands of dollars in attorneys’ fees as well as lost time.

Recent case: Pennye Bardwell worked on an oil rig in the Gulf of Mexico. Shifts lasted 21 days, followed by 21 days off. Bardwell frequently got sick and used FMLA and other leave. She missed part of her final 21-day shift but got a doctor’s excuse. Then she submitted a back-to-work note and was told to report for transportation to the oil rig. Bardwell claims she got sick again, went to her doctor and needed more time off.

Then the company fired Bardwell for breaking a rule requiring employees to call in before their next scheduled shift if they had missed a preceding one. She insisted she had called HR several times in the days leading up to the scheduled date of her return. However, company records didn’t show any calls from Bardwell’s home or cell phones. Instead, they showed the company had made several calls to her.

Bardwell sued, alleging the company violated the TCHRA. But the court said the employer acted in good faith. The proof was in the phone calls to Bardwell and the lack of calls from her. In addition, Bardwell couldn’t find anyone else treated worse than she was—no one else ignored calls after missing a shift. (Bardwell v. Global Santa Fe Drilling, No. H-06-0171, SD TX, 2007)

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