The Importance of Having – and Following – Clear Employment Policies

By Eric B. Meyer

Remember that Americans with Disabilities Act case involving Walgreens and the $1.39 bag of chips?

In that one, the store appeared to really step in it by firing a diabetic who ate a bag of chips from the store without paying for it. The employee claimed that she needed the chips for her diabetes. The store defended its actions by arguing that the employee violated its no-grazing policy.

Some $180,000 later, that case was settled.

I don’t know how much the chicken poppers sell for at Wal-Mart. And the recent case involving the company’s no-grazing policy didn’t settle either.

The case of the spit out chicken poppers

This latest opinion (Simon v. Wal-Mart Associates) involved a supervisor in a store with a “no-grazing” policy. In her position, the employee worked around food. She knew that the store had a no-grazing policy and that violating it could lead to termination.

Indeed, the plaintiff-supervisor forwarded complaints to management that two others had violated the policy, and both were fired.

One day, the plaintiff-supervisor was accused of violating the no-grazing policy by eating a few chicken poppers. She was later interviewed and initially denied grazing. Indeed, she flatly denied consuming the food. As the court’s opinion notes, “she admitted that she put chicken poppers in her mouth to taste them but then spit them back out.”

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When Wal-Mart later fired the plaintiff-supervisor, she alleged both age and sex discrimination because Wal-Mart later replaced her with a younger man. The court however, disagreed, because what the plaintiff had done was violate a clear employer policy:

Simon fails to show that the reasons behind her termination were actually pretext for age and gender discrimination….She contends that actual proof of consuming the chicken is necessary to violate Wal-Mart policy and lead to termination. But the evidence speaks to the contrary. Wal-Mart’s Coaching for Improvement Policy explicitly delineates the types of behavior that can warrant a citation for gross misconduct…The fact that Simon rendered chicken poppers unsalable, at a loss to Wal-Mart, and that this action served as the basis for her termination is not in dispute. Her complaint will be dismissed and summary judgment granted for Defendant.”

What employers should know

Sometimes, as with the Walgreens case, workplace rules like a no-grazing policy require flexibility. A no-fault attendance policy is another one that could have some carve-outs.

But, generally speaking, you actually get into more trouble by creating exceptions to your handbook policies. You have clear policies for a reason. So, enforce them.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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