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

| December 2, 2018

AN UNENFORCED POLICY MAY BE … UNENFORCEABLE

QUESTION:  I’m a supervisor at a large company. The company has an Internet Policy forbidding use of company computers to access the Internet for personal use. Although all employees are required to acknowledge they have read the policy before they start on the job, the policy is widely ignored, although most people just go online briefly to check email etc. One employee, however, seems to be online more than others. When I called him in, to tell him he could be discharged, he became very angry and told me I was picking on him because of his ethnicity (he’s of Hispanic origin). He claimed he would sue for discrimination if I fired him. After this, I would really like to terminate his employment — but would I open the company up to a lawsuit?

ANSWER: Michigan is an at-will employment state, so an employer can fire an employee for any reason, or none at all — as long as the termination is not based on improper consideration the employee’s race, color, national origin, sex, religion, weight, marital status or disability — the “protected categories” under Michigan or federal law.

Normally, violation of a work policy is a clear-cut reason for termination. But, as your employee pointed out, when a policy is not enforced, discharging an employee who belongs to a protected class for violating the policy gives rise to an inference that the discharge is discriminatory.

In fact, even where a policy is enforced, uneven enforcement of the policy can result in a discrimination charge.

In Stroder v. Kentucky Cabinet for Health and Family Services, 2012 WL 1424496 (CA6, 2012), a Kentucky employer 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 employees 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 held a case of discrimination had been established, and ruled in favor of the Plaintiff, the gay man.

If you want to stop employees from using the internet for personal business during business hours, you need to announce that the policy will be enforced from now on — and start enforcing the policy against all violators. (Note, some employers allow employees to use the internet during lunch or during set break times.)

The bottom line is, if you want a policy to be enforceable, you have to enforce it.

As for the worker who threatened to sue, you need to be careful. Discharging him now, even for a performance-related issue, could be viewed as retaliation for asserting his rights!

The lawyers at GWINN LEGAL 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.gwinnlegal.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 LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com

www.gwinnlegal.com

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Category: Featured Column

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