Ask The Lawyer By: Daniel A. Gwinn, Esq. – Going With the Flow?

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QUESTION: I run a small business — just 20 people. Although we have an attendance policy, I’ve never really laid down the law; as long as people got their work done I didn’t get involved in writing them up for coming in late, or calling in sick on short notice. Until last week. This one guy has been coming in 15 minutes to a half hour late almost every day. I told him a couple of times he was abusing the process, but it didn’t make any difference. I called him into my office and explained that he had violated the company’s policy and could be terminated. He accused me of discriminating against him because of his age — he’s only 21 — and threatened to sue if I fired him. I only wanted to give him a warning, but after this, I’d be glad to see his back. Can he really sue for age discrimination? I thought that was only for people who are over 45 or something.

ANSWER: Unfortunately, there are two issues presented in your question, and you seem to be on the wrong side of the law on both.

First off, having policies for your workers is no good if you don’t consistently enforce them. Not only can inconsistent enforcement of a policy lead to abuse, it can also foster poor employee morale. In your case, those who do show up on time, or work late to make up for a late arrival, are probably not thrilled to see others coming in late day after day without any penalty. And, failing to enforce a policy makes it really hard to enforce when you need to.

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.

Being young isn’t usually considered a form of age discrimination, but the Michigan Court of Appeals ruled in 2000 that Michigan’s Elliott-Larsen Civil Rights Act “provides protection to workers who are discriminated against because of their youth.” The 31-year-old plaintiff in that case — Zanni v Medaphis Physician Services Group — claimed she was terminated, in part, because of her youth. She had been told that her “voice sounded too young on the phone and that clients wanted an older account executive.” So, if your employee can show that he was treated differently than other workers because of his youth, he would have grounds to sue under Michigan law.

The story would be different under federal law. The Age Discrimination in Employment Act protects workers age 40 and up from discrimination in employment. Your 21-year-old worker wouldn’t have a case.

If you want to stop employees from arriving late or leaving early, you need to announce that the policy will be enforced from now on — and start enforcing the policy against all violators. (Some employers allow employees to be counted on time if they arrive within a range of hours, for example from 7:30 9:00 a.m., as long as they work a full day after arrival.) If the young man continues to show up late after you start enforcing your policy against everyone, his shouldn’t have a valid basis for a claim of discrimination.

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

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]