Q. Two employees went to breakfast and drank three bottles of champagne to celebrate one’s birthday. One employee is an who has been with us for seven years. The other is an hourly employee with the company for one month. I’d like to treat them differently: terminate the hourly employee and suspend the exempt employee for a week. Is that possible?—D.M. California
A. Three bottles of champagne for breakfast?! Our “gut” says to terminate both employees immediately. That said, your question raises an interesting issue: whether an employer can lawfully consider an employee’s tenure when implementing disciplinary action. The answer is “Yes.”
In some cases, when two employees engage in identical misconduct, it may be lawful to terminate one and not the other. You can lawfully consider an employee’s tenure, disciplinary history and job performance when deciding what level of discipline fits the “crime.” However, treating employees differently in cases like this opens the door to discrimination allegations.