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Ask the Lawyer By: Daniel A. Gwinn, Esq.

| May 1, 2017

SELECTIVE ENFORCEMENT OF WORK RULES COULD LEAD TO A LAWSUIT

QUESTION: We recently hired a new employee, and she’s not working out – she rubs people the wrong way. I’m ready to let her go. Her manager noticed she’s on-line a lot at lunch, sending e-mails and shopping. Use of the internet for personal business is against company policy, but it’s a policy a lot of people break. Can I fire her for violating company policy?

ANSWER: Michigan is an at-will employment state, meaning you can fire a worker for any reason, or for no reason at all as long as the reason is not discriminatory — so you would think discharging a worker for a violation of company policy would be a no-brainer. However, when a company policy is widely disregarded, discharging one employee for the violation, but not all employees, raises questions about whether the reason for the discharge was valid, or whether it was a pretext for a form of illegal employment discrimination.

In a recent case out of the Sixth Circuit – which oversees cases from Michigan, Ohio, Kentucky and Tennessee – an employer in Kentucky discharged one of two probationary employees, who had been hired at the same time and worked in the same department, for violating a company internet use policy. Both employers had used their work computer to send inappropriate e-mails, but only the male employee — who was openly gay – was discharged. The other worker, a heterosexual married woman, was retained. Under the circumstances, the Circuit Court Judge ruled a case of discrimination had been established, and ruled in favor of the Plaintiff, the gay man.

Discharging one employee for conduct tolerated in other workers puts you at risk of a lawsuit. A discharged worker could claim she was discharged because of age, disability, sex, race, weight, or religion. Where your reason for the discharge is viewed as pretextual, and/or where the discharged employee alleges that the workplace rule he or she violated was tolerated when others committed the same or similar infraction, a lawsuit against you may have an extended life – costing you thousands of dollars.

To ensure you have up-to-date information on Michigan’s at-will employment policies and employment discrimination law, you may wish to consult an attorney. The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

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