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Caution: ‘Going by the book’ may be retaliation

by on
in Employment Law,Firing,Human Resources

When an employee everyone considered loyal suddenly starts complaining to a regulatory agency about alleged workplace violations, it’s natural to be upset. But resist the temptation to send the employee a message by suddenly enforcing the work rules zealously.

If you take matters too far and he winds up losing his job, chances are a jury will have the opportunity to wonder whether your hard-line position was actually retaliation. That’s especially true if you never—or only sporadically—enforced the rules in the past.

Recent case: Vincent Carlson worked for cheese manufacturer Leprino Foods for almost 10 years. He usually worked the first shift on weekdays, although the plant operated 24/7, and he sometimes worked other shifts as well.

Then Carlson signed up for weekend law school and requested his schedule be strictly limited to weekdays. For most of Carlson’s first semester, Leprino honored his request. After all, he was a valued employee who had recently received an employee award.

But then, perhaps inspired by his law school course work, Carlson reported to the U.S. Labor Department that Leprino Foods wasn’t paying its employees for the time they spent putting on and taking off protective clothing. The Labor Department began an investigation.

Soon after, the company began scheduling Carlson to work weekends. Less than a month after Leprino learned that it was Carlson who had contacted the Labor Department, he had accumulated enough points under the company’s no-fault attendance policy to lose his job. He sued, alleging retaliation.

The court ordered a jury trial. It said that the circumstances were suspicious—Carlson suddenly could not get the time off he needed, but the rules had never been enforced so strictly before. The court concluded that the close timing between Carlson’s report and his firing, plus the company’s sudden change of heart toward a good employee, could be retaliation. A jury will decide. (Carlson v. Leprino Foods, No. 1:05-CV-799, ED MI, 2007)

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