No good deed goes unpunished. If employers are lenient in application of their work rules, employees can attempt to take advantage at a later date. One Alabama employer learned that lesson the hard way recently. See Foster v. North American Bus Industries, Inc., No. 1150716, 2017 WL 1534547 (Ala. Apr. 28, 2017). The employee in Foster arguably suffered an on-the-job injury. The employer’s policy required all employees to call their supervisor at least thirty minutes before their shift in the event of an absence. Failure to telephone in advance of two consecutive shifts would result in termination.
In the course of receiving medical treatment for the alleged work injury, the employee in Foster failed to directly telephone her supervisor on two consecutive days in advance of an absence. The employer terminated the employee, who promptly sued for retaliatory discharge under Alabama Code Section 25-5-11.1. The employer was able to convince a trial judge that the employee was fired because of the call-in policy. But, the Alabama Supreme Court reversed and ordered the case to trial.
In particular, the Supreme Court relied upon evidence that the employer did not consistently enforce the call-in work rule. The employer claimed that it terminated the employee, because she did not call-in before shifts on July 23 and 24, 2012. But, the employee offered evidence showing that the employer excused her absence on July 19, 2012 after her husband called-in for her — and that he called-in again before the July 23 shift. The employee also claimed that she left a written doctor’s excuse at the employer’s guard shack on July 22, 2012. The employer claimed that delivery of a note to the guard shack was insufficient to meet the call-in policy — but, the evidence also showed that the employer did accept such a note on July 11, 2012.
In short, the employer tried to base its termination on a strict interpretation of its call-in work rules. Yet, earlier in its treatment of the same employee, strict compliance was not required. The Supreme Court found that the failure to consistently apply the call-in policy could allow a jury to infer that the real reason for termination was not the call-in policy, but retaliation for a workers’ compensation claim.
The lesson to be learned from Foster is: consistency. If you terminate an employee for violation of work rules, you should make sure to consistently enforce the rule. If you make exceptions to the work rules for one employee, you need to seriously consider making exceptions for other similarly situated employees. If you don’t, you risk the possibility that an employee could accuse you of differential treatment in the future.