I get that employee handbooks are not contacts and are subject to change and all that stuff. But, companies should be prepared to enforce any existing policy in an employee handbook as written.
A multi-billion-dollar company with an overly broad attendance policy learned this lesson the hard way recently.
According to this federal court decision, as part of its employee handbook, the defendant maintained HR policies applicable to all employees, including attendance. Enough unexcused absences coupled with other disciplinary infractions would lead to a termination of employment.
Sure enough, the plaintiff was treading on thin ice. She had a verbal altercation with a coworker that left her close to a termination of employment.
But then she claimed that another employee sexually harassed her. After reporting the allegation, the company investigated and fired the alleged harasser.
So, you can see where we may be headed here. We’ve got a protected activity. Cue the adverse employment action.
Shortly after complaining about sexual harassment, the plaintiff missed work on two separate occasions. Each absence was unforeseen. The first time, her car was repossessed. The second time, a police officer stopped her for driving with a suspended license and without insurance. But, subject to approval, employees could also take Emergency Vacation (“EV”). And wouldn’t you know it? The defendant denied the plaintiff’s request to take EV each time. And, after the second absence, it terminated her employment.
The plaintiff claimed retaliation. After all, her termination wasn’t long after she complained about sexual harassment. And she felt that there was a nexus between the two. As support, the plaintiff argued that her supervisor had “unfettered discretion” to approve or deny requests for EV.
The defendant responded that employees could only use EV for documented sickness.
But what did the policy say?
It provided a non-exhaustive list of permissible reasons to use EV that included traffic, weather, and visiting the on-site medical clinic and ended with “etc.” The employee handbook also noted that requests for EV required the approval of the employee’s Group Leader or Manager and that the “[u]se of EV will prevent occurrences in [the employee’s] attendance record when approved by [the employee’s] Group Leader or Manager.”
Based on the disputed facts concerning the use of EV, and viewing the evidence in the light most favorable to the plaintiff, the court concluded that a reasonable jury could find that defendant’s reasons for denying the plaintiff’s EV (unfairly limiting it to documented sickness) and terminating her were pretextual.
Now pull out that employee handbook and a red pen. Strike any policy that the company does not plan to enforce and edits any other policies that are overly broad and effectively meaningless.