Workers committed same offense? Be sure to document why one got harsher penalty — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Workers committed same offense? Be sure to document why one got harsher penalty

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Employees who are fired don’t have much else to lose, which means they often stop at a lawyer’s office right after filing for unemployment. One of the first things that attorney will look for is any sign that discrimination played a role in the termination.

That’s why it’s critical for you to back up every disciplinary decision with complete records showing exactly why the employee deserved his punishment. If the fired employee broke the same rule another employee did, those records better show you punished them equally—or explain why the punishment was different.

Don’t wait until you’re sued to justify the difference. Back it up contemporaneously.

Recent case: Sunny Ekokotu, who is black and of Nigerian descent, was fired from his FedEx job for using his cell phone while driving. That violated company safety and liability rules.

Ekokotu sued, claiming he was really fired because of racial and national-origin discrimination. He said several other employees who were neither black nor Nigerian had gotten the benefit of the doubt when they were caught allegedly talking on cell phones while driving.

FedEx told the court it had decided to fire Ekokotu and not the others for one simple reason: An eyewitness had seen him using his cell phone. That wasn’t the case with the others. The court said that was a legitimate, reasonable distinction that dispelled the idea that discrimination was FedEx’s real motivation. (Ekokotu v. Boyle, et al., No. 08-10161, 11th Cir., 2008) 

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