The company’s handbook said that employees fired for “gross misconduct” would not receive pay for earned but unused vacation time. The term “gross misconduct” was not defined.

One employee was fired after he failed a mandatory drug test. He did not receive any vacation pay.

He sued, claiming a failed drug test didn’t reach the level of gross misconduct and demanded a payout for the leave he didn’t use.

The court agreed. Since the company didn’t explain what conduct it was referring to, the judge tipped the scales in the employee’s favor and said “gross misconduct” refers to actions that are “intentional, wanton, willful, deliberate, reckless or in deliberate indifference to an employer’s interest.”

And, according to the court, failing a drug test didn’t make the cut. The employee was awarded his payout.

The lesson: Be careful about using terms that are open to interpretation without clearly defining them. If the handbook had simply said, for example, that employees forfeit their paid leave if they’re fired for breaking company policy, the court battle could likely have been avoided.

Cite: Lang v. Quality Mold.

If an employee has taken FMLA leave, that can make the situation even more complicated. Take this recent case as an example:

A sales rep had been highly regarded by his employer. Three out of his four most recent performance evaluations rated him as “exceeding expectations.”

That changed after he took a month of FMLA leave to be treated for alcoholism.

Two weeks after he came back, it was time for his next review. His boss noted that his sales had dropped and there had been problems with his communication skills. The review concluded the employee failed to meet expectations, and he was placed on a 30-day performance improvement plan.

When he failed to bring his numbers back up in time, he was fired — and he sued the company. He claimed he was a good employee and was unfairly terminated because he took FMLA leave.

The employer argued that despite his previous success, his performance started to slip, as his most recent review showed.

But the company lost the case.

The reason: The court wasn’t convinced he would’ve gotten a poor review if he hadn’t taken leave. As the judge noted, missing a month of work must have caused his sales to suffer. The company should have adjusted its standards to account for the time he was gone.

Managers need to be careful about how they evaluate employees who return from medical leave. Even if bias isn’t intentional, companies can still get in trouble when an adverse action is in any way tied to an employee’s use of FMLA.

Cite: Burris v. Novartis Animal Health U.S., Inc.

In many situations, yes, as long as the documentation is in order. But here’s a case where a manager’s flexibility went too far — and got the company in big trouble:

A male bus driver was fired after dropping a student off at an unauthorized stop, in violation of the school district’s policy.

The problem: A few other drivers, all female, had broken the same rule but were never disciplined.

So the male driver sued, claiming he was fired because of his gender.

His manager argued the decision was partially based on the man’s previous performance — during his tenure, he’d been involved in one accident, and the school district had gotten several complaints about him from students’ parents.

His unauthorized stop was just the final straw.

What did the court think?

The judge sided with the employee. He presented a lot of evidence of how frequently the policy was broken. One female driver was caught making unauthorized stops on a regular basis for two years, without any disciplinary action.

The man did have problems in the past, but the school district couldn’t prove the rule had ever been taken seriously by management when female employees were involved.

The lesson for managers: You don’t have to treat every employee exactly the same, even when they violate the same policy. In some cases, such as when there’ve been previous behavior problems, the company might decide to fire an employee while only warning the other.

But firing someone while taking absolutely no action against anyone else is likely to lead to a discrimination lawsuit.

Cite: Dinkins v. Suffolk Transportation Services.

A recent case is a reminder that working in HR is often like herding cats — once you’ve got managers doing one thing right, there’s a chance they’re making mistakes in another area.

In this case, the manager kept all his documentation in order, but still managed to cause big trouble for the company.

An employee was disciplined for several behavior and performance issues. Over the course of a year, she was:

• given a negative review for failing to get work done on time
• warned about her attendance
• suspended for falsifying time records, and
• warned in writing for not following the employer’s procedures.

Eventually, she was suspended again for failing to perform some of her job duties and placed on a performance improvement plan. The company gave her one more chance to correct the problems.

In her next review, her manager described her performance as “marginal.” The supervisor brought the situation to his boss and the employer’s HR manager, who made the obvious decision: The employee was fired.

Sound reasonable? The employee didn’t think so. She claimed her boss disciplined her and gave her negative reviews because of her age and sex. She pointed to several comments he made to her, including, “Women are good for one thing and that is sex,” and, “They’re too old to do their jobs well anymore,” referring to two of the woman’s co-workers.

Didn’t make decision

The employee took the issue to court. The company tried to have the case thrown out, arguing that the manager wasn’t involved in the final decision to fire her. He brought the problems to the attention of his supervisor and HR, and they made an unbiased decision based on his documentation.

But that didn’t matter to the judge. Even if the final decision-makers weren’t biased, the woman wouldn’t have been fired without the actions her manager took. And, based on his discriminatory comments, the court believed she’d been repeatedly disciplined because of her age and gender.

The court refused to toss the case, and the now company will have to defend itself in a costly jury trial or pay an expensive settlement.

Stay out of trouble

Here are some steps HR can take to prevent one rogue supervisor’s biases from causing big legal trouble for the company:

• Investigate. As this case shows, sometimes it’s not enough for a decision-maker to rely on a front-line manager’s assessment. It’s often necessary to ask for the employee’s side of the story before taking any action.
• Train regularly. Managers need to understand how the things they say can be interpreted by employees — supervisors have gotten in trouble over less outrageous comments than the examples in this case.
• Follow up. After training, make sure supervisors who still give the impression of bias are disciplined.

Cite: Lanahan v. Southern Nevada Health District

In one recent case, an employee missed 10 days of work because of a medical problem. When she told her boss she was going to be absent again, the boss said she may be able to take FMLA leave.

She declined, apparently because she may have needed surgery in the near future and was waiting to see how much time off she’d require at that point.

So she took the days off without completing FMLA certification. The problem: She was out of her allotted sick leave and had already been warned by her manager about excessive absenteeism. After she missed several days, she was fired.

She sued, claiming the company violated the FMLA. Her argument: The supervisor should have warned her that her job would be in jeopardy if her leave was unprotected.

But the judge didn’t buy it. The manager did the right thing: He offered FMLA when he learned she had a medical issue. The law didn’t require him to do anything more.

The employee should have understood the difference between FMLA and unprotected leave — and she’d already been warned about missing too much time.

Cite: Knox v. City of Monroe

In one recent case, an employee was diagnosed with anxiety and depression. He had sleeping problems and needed a short stay in the hospital after a panic attack.

The apparent cause: the employee’s boss. He claimed the problems began after receiving two negative performance reviews and being told he needed to increase his sales.

As his performance problems continued, the last straw came after he broke company policy by misusing his corporate credit card. He was fired.

The employee sued, claiming he was terminated because of a disability.

But the court didn’t buy it — his condition wasn’t serious enough to be a legally protected disability. To meet the standard, the judge said, the condition needs to have permanent or long-term effects.

In this case, the problems were situational — therefore, the depression and anxiety would only last as long as he worked for the same supervisor.

Cite: Maslanka v. Johnson & Johnson, Inc.

Don’t try to show resigning employees the door too early.

In one recent case, an employee gave her boss two-weeks notice that she was quitting.

The company starting looking for her replacement.It quickly found a new hire who could start immediately. Not wanting to pay the two employees simultaneously, the company told the woman she was terminated — three days before her resignation was set to take effect.

Claiming she’d been fired without cause, she filed for unemployment compensation — and won.

The company argued that she quit and just wasn’t needed for the entire two weeks. But the court disagreed. Drawing on similar cases, it ruled that being fired right before a resignation is about to take effect is still an involuntary termination for the sake of awarding unemployment benefits.

Cite: Porter v. Florida Unemployment Appeals Commission

Here’s what happened:

An employee suffered a serious back injury. He requested two months of FMLA leave.

When he asked for time off, his manager allegedly warned him, “If you take that much leave, there will not be a job waiting for you when you get back.”

Nonetheless, he was allowed to take leave and was reinstated after two months.

Then, however, the employer underwent a company-wide reduction-in-force. The employee returning from FMLA had the lowest seniority in his department, so he was let go.

He sued, claiming he was laid off because of his FMLA leave. He pointing to the manager’s threat as his primary piece of evidence.

The court agreed with him and refused to dismiss the case.

In any other situation, the company may have escaped liability — after all, the employee was given leave, reinstated and chosen for the RIF based on objective, unrelated criteria. Normally, it wouldn’t have been hard to show the termination had nothing to do with his FMLA leave.

But in this case, the manager’s response to his initial request made all the difference for the judge.

Cite: Daugherty v. Sajar Plastics, Inc.

That’s what almost happened to 10 nurses who simultaneously resigned from their employer, a nursing home on Long Island.

The nurses claimed that several promises made when they were hired were not upheld, including their rate of pay. So they all quit on the same day, at the end of their respective shifts — without providing notice.

What happened to them? They were charged by the district attorney with the crime of “endangering the welfare of a physically disabled person,” since their immediate resignations left the home understaffed.

The case was tossed, though. The court ruled that prosecuting employees for quitting their jobs is a violation of the 13th amendment — that’s right, the one that abolished slavery.

Cite: Vinluan v. Doyle

Read the facts of the real-life case and decide: Who won?

The facts:

During an audit of travel expense reports, the company discovered that one employee had requested a total of $1,622 more than he actually spent and pocketed the difference. The employee admitted that he often filled out expense reports before he traveled, estimating how much money he would spend — which was against company policy. He also acknowledged making other “mistakes” that led to him being overpaid. He was fired.

His manager sent an e-mail to the rest of his staff telling them about the termination. The e-mail stated the employee “was not in compliance with our travel and expenses policies,” and reminded employees that “compliance with company policies is not optional.”

After he found out about the e-mail, the employee sued the company for libel.

The employer said:

Everything the manager said in the e-mail was true. There was no intention to defame the employee’s character, just to remind employees that the company takes its policies seriously.

Who won the case?

Answer: The employer.

Why: The judge ruled that the e-mail wasn’t libel. For an act to be considered libel, the statement must:

• be written down
• concern the person bringing the suit
• be defamatory
• be false, and
• cause an economic loss or other adverse consequences.

The e-mail met all the criteria but one: It wasn’t false. The employee was fired for violating the company’s travel and entertainment policy, a fact that was not disputed.

Therefore, while it may have been in poor taste to use the ex-employee as an example, it wasn’t illegal.

Cite: Noonan v. Staples, Inc.