Where legal trouble lurks: Even unwritten rules must be enforced fairly and consistently
It’s not enough to impartially and equitably uphold your formal rules. Even unwritten rules require fair and evenhanded enforcement.
Before disciplining an employee who says she did what she did because her supervisor told her it was OK, make sure others following the same informal rule were treated the same. If you fire or demote one, you must fire or demote the other.
Recent case: Michelle was a public information officer for the Texas Department of Criminal Justice. Her supervisor told her informally that because she was an exempt employee, she could adjust her hours as needed as long as she worked at least 40 hours per week and responded to press and other inquiries whenever needed.
Michelle always noted on her time sheets that she was in the office for 40 hours per week unless she was on vacation or other leave. She did not note any after-hours work.
After her boss retired, Michelle was promoted. Then one of her subordinates complained to the agency director that Michelle wasn’t tracking her time properly. The agency launched an investigation and concluded that Michelle had reported working full eight-hour days when she had not actually been in the office or at an approved off-site location as required by agency rules. Michelle was demoted.
She complained that one of her other subordinates—a man—had recorded time the same informal way.
When the man wasn’t punished, Michelle sued, alleging sex discrimination.
The retired former supervisor provided an affidavit that explained the unwritten rule: Because public information officers had to be on duty 24/7, as long as they worked at least 40 hours per week, they could report those hours as regular scheduled hours and were free to take breaks or run errands during their day.
The 5th Circuit Court of Appeals said Michelle had a case and ordered a trial. It concluded that selective enforcement of an exception to the employer’s written rules can be proof of discrimination. (Lyons v. Texas Department of Criminal Justice, No. 13-20543, 5th Cir., 2014)
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Don’t go overboard tracking exempt employees
Exempt employees don’t earn overtime when they work more than 40 hours per week. Their exempt status is based on provisions in the Fair Labor Standards Act (FLSA). When the FLSA was originally passed, Congress sought to quell organized labor’s demands for a straight 40-hour workweek with a compromise that allowed most blue-collar employees to work more hours, but penalized employers requiring extra hours by making them pay overtime.
White-collar workers were assumed to have more bargaining power, so the new rules didn’t apply to them except for one compromise: So-called exempt employees were required to work as long and as hard as needed to get the job done for a set salary. However, they were also allowed to control their workday within the requirements of getting their work done.
Thus, exempt employees aren’t held to a strict nine-to-five workday, but can take breaks for errands or other personal needs without undue interference from their employers.
That’s what the retired supervisor in this case understood when he told Michelle she didn’t have to precisely track her hours.
