Selective enforcement can kill you during FMLA lawsuits
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Selective enforcement can kill you during FMLA lawsuits

Enforcing policies uniformly helps prevent FMLA lawsuits.

There’s no law against firing a worker for stealing from the company – even if it’s her first day back from FMLA leave and all she stole was one serving of junk food. But there’s a catch: if you fire a 49-year-old employee for stealing, you’d better fire a 23-year-old employee if he steals, too.

Otherwise, expect FMLA lawsuits.

This case illustrates how disgruntled ex-employees (and their attorneys) approach FMLA lawsuits.

And it could help you to avoid a courtroom disaster.

Facts of the case

Lorraine Haley worked at a Wal-Mart snack bar. During her seven-year tenure there, she earned consistently excellent performance ratings and merit-based raises.

In 1999, Haley requested and was granted FMLA leave so that she could care for her husband after he underwent surgery. Just before taking leave, however, a serviceman visited the snack bar to repair some equipment.

After the serviceman completed the repair, Haley cooked a batch of chicken fries to test the equipment. Then she gave the fries to the repairman and documented the order in the snack bar’s “spoilage report.”

While Haley was on leave, another employee was suspected of pilfering food from the snack bar.

Management launched an investigation, which involved a thorough review of the snack bar’s surveillance tapes.

When the loss prevention team spotted Haley’s “chicken-fries incident” it alerted management to her breach of the company’s “No Grazing” policy.

When Haley returned from family medical leave, she was discharged. Considering the circumstances, that may seem harsh, but Haley had violated company policy, pure and simple, said management. “No Grazing” might seem like a joke, but in the slim-margined food services industry, pilferage can mean the difference between profitability and bankruptcy.

Anatomy of one of many FMLA lawsuits

Haley sued her former employer. In her lawsuit she made two claims: one was that Wal-Mart had violated her FMLA rights by firing her. Her argument was that she’d been fired in retaliation for taking FMLA leave, like many FMLA lawsuits before her.

Haley’s second claim was age discrimination. Haley was 49 years old at the time she was dismissed.

She didn’t dispute that she’d given the chicken fries to the serviceman and had fudged the spoilage report.

But in court Haley’s attorney introduced into evidence the fact that some months before, a male employee in his 20s violated the “No Grazing” policy in a similar manner. He was caught and then transferred to another area of the store – not dismissed.

Haley lost on her FMLA claim. The court acknowledged that she had taken FMLA leave and was fired as soon as she returned from it. But she failed to prove a “causal” relationship between those two events. Just because the two things occurred close to the same time didn’t mean that one caused the other.

But Haley’s claim of age discrimination and ADEA violation was more difficult for the court to ignore. She showed that when another, younger, employee broke the same policy in virtually the same manner, he was disciplined differently from her.

The court found in favor of Haley. Instead of the case getting thrown out of court, the judge remanded it for trial. Now the employer will have to go through the expense of a trial – or (more likely) a settlement.

All because the employer failed to enforce its own policies across the board.

Cite: Haley v. Wal-Mart, U.S. District Court, District of Massachusetts, No. 00-CV-11213-RGS, 11/15/01.

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