Your employer has a written, detailed attendance policy that they expect all of their employees to follow. But what happens when your employer fails to follow their own written policy? To make matters worse, they decide to change the rules when it's time to deal with you. This situation is much like the old saying, "Do what I say, not what I do."
The reality is, when it comes to most business decisions, an employer has a lot of discretion in how they operate, as well as how they deal with their employees. There are, however, some situations where failure to follow a particular policy can provide evidence of employment discrimination.
The Purpose of Company Policies
It is a good business practice for employers to establish clear and reasonable policies and follow those policies consistently. Having good policies, and enforcing those policies, promotes efficiency and high morale among employees. When employees know what is expected of them, as well as the consequences of non-compliance, business can run smoothly.
Unfortunately, even when reasonable policies are in place, not all employers apply them consistently. Instead, many employers apply them selectively, change them to fit a certain situation, or disregard them altogether. In most cases, employers have the discretion to do just that. Although it seems unfair, in an "employment at will" state like Alabama, it is usually legal.
When Can Failure to Follow Policy Lead to a Legal Claim?
As with most rules, there are exceptions to the laws governing employment at will. In some situations, an employer is required to follow their own policies and apply them consistently, or be subject to legal liability. For example, the failure to follow established policies is illegal when:
- Such policies are consistent with statutory or regulatory requirements;
- They are part of an employment contract or collective bargaining agreement;
- Or the language of an employee handbook or other policy creates a contract
Failure to Uphold Policies As Evidence of Discrimination
If it can be shown that an employer's decision to disregard its own policies was motivated by discriminatory animus, there may be a viable claim for employment discrimination. For example, consider an employee who is terminated based on attendance issues but, according to the company's written attendance policy, had not yet violated the policy. The failure to apply a written policy, as it was written, to this particular employee, can be evidence of discrimination.
What Is Pretext in Employment Discrimination?
In employment discrimination cases, there is a formula for demonstrating that an employer's conduct or decisions were discriminatory. Once an employer has given what appears to be a legitimate, non-discriminatory reason for the termination, the employee must demonstrate that the reason "was not the true reason for the employment decision," but instead was a "pretext" (or excuse) for discrimination. Demonstrating pretext is a vital part of any successful employment law claim.
How Do You Show Pretext?
One of the ways an employee can show pretext is to demonstrate that their employer's explanation "lacks credibility," making discrimination the likely motive. In other words, the question is, would this reason have motivated a reasonable employer to terminate the employee? The courts have held repeatedly that an employer's failure to follow its own policies in this situation can support a finding of pretext.
When your employer acts in a way that contradicts company policies, you need a legal professional on your side. To discuss your rights in the face of workplace discrimination or start an employment discrimination claim in Birmingham, please contact an employment law attorney from Michel Allen & Sinor today.
Additional Reading