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.

Employee handbooks are supposed to protect the company. But thanks to these common mistakes, many policy manuals are a lawsuit waiting to happen.

Mostly, it comes down to the choice of wording. Phrasing policies the wrong way often causes big legal trouble when managers discipline or fire employees.

Here are seven big problems all companies need to watch out for, according to HR consultant Hunter Lott:

1. Illegal overtime policies — A statement that shouldn’t appear in any handbook: “Authorized overtime will be paid at 1.5 times the regular hourly rate.” That policy is illegal under the FLSA — all OT, whether it’s authorized or not, must be paid. You can have a rule against working OT without permission and discipline or even fire someone for it, but you still need to pay them.
2. Vague FMLA language — Policies on FMLA should lay out all of the law’s eligibility rules. Otherwise, employees who wouldn’t have qualified for leave may still be able to sue the company. Also, make sure you’re specific about how FMLA and paid time off intertwine. If employees are required to use FMLA and PTO concurrently, that needs to be in the handbook. If it isn’t, employees may argue in court that their 12 weeks of medical leave didn’t start until after their sick and vacation time was used up.
3. Bans on salary discussions — The only logical reason for a company to ban talk about salary, Lott says, is that its pay structure is unfair and unlawful — which is a possibility employers certainly don’t want to raise. Also, such policies may run afoul of the National Labor Relations Act, which gives employees the right to talk freely about working conditions.
4. Unnecessary probationary periods — Specifying that new hires are on a 90-day probation is appropriate for union or government employees, who are protected from termination in some cases. But for any other company, it doesn’t make much sense. Most employees are at-will — which means they can be fired at any time for any legal reason. Giving everyone a probationary period might negate an employee’s at-will status once the 90 days are over.
   
5. Rules that are too personal — Lott warns against handbook statements like, “Employees are prohibited from dating co-workers.” It makes the company sound like a babysitter and creates a serious enforcement headache. Employers will get a lot more protection from a job-related policy such as: “Any relationship that affects your ability to do your job may be a valid reason for firing.”
6. Salary offers that offer too much — Employees and their attorneys will try to interpret everything the company says literally — especially when it comes to money. For example, telling employees what their “annual salary” is when they’re hired could imply that you intend to pay them for an entire year, no matter what. Instead, the statement should read something like, “an annual salary of (blank), earned and paid biweekly, monthly, etc.”
7. Too many details — Sometimes, listing too many specific behaviors that warrant discipline can make it difficult to discipline for other issues. For example, if a dress code includes 35 things employees aren’t allowed to wear, there’s likely to be some resistance when a manager tries to punish someone for inappropriate dress that hasn’t been explicitly spelled out.

In a recent case, an employee claimed her supervisor sexually harassed her for more than two and a half years. Throughout the entire time, the company had a policy against harassment and advised employees to report complaints to their supervisors, HR or a dedicated hotline.

However, the employee chose not to report for two and a half years. When she eventually did, the supervisor was fired within a few days.

She sued the company anyway, claiming she didn’t report the harassment because she feared retaliation, and the company should have known about the situation anyway.

The court didn’t buy it. She gave no evidence that she had any reason to worry about retaliation, or that anyone in the company would reasonably have been able to tell there was a harassment problem.

In the end, the employee herself was to blame for the harassment continuing for such a long time. Once it found out, the company took the right action by investigating and firing the harasser.

Cite: Adams v. O’Reilly Automotive, Inc.

Under FMLA, some employees aren’t eligible for leave. But that doesn’t mean they can’t sue their employers for FMLA mistakes.

In one recent case, an employee took some time off for surgery. While he was gone, the company put someone else in his position.

When he came back to work, his boss told him his job had been filled. The company offered him a new position, which he turned down. He was terminated, and he sued under FMLA.

The company’s defense was clear-cut: The employee wasn’t on FMLA leave, since he wasn’t eligible for FMLA. The company’s headquarters had more than 50 workers, but the man worked out of his home, more than 75 miles away.

The company claimed it had just given him some time off — without the obligation to put him back in the same or similar position.

But the employee won the case. Why? A glitch in the handbook.

The company’s leave policy explained employees’ rights under FMLA and listed all the eligibility requirements — except the “50/75″ rule. When the employee told his boss he needed leave for surgery, he was sent a letter restating the handbook’s FMLA policy.

That gave him reason to assume he was taking FMLA-protected leave, the court ruled — so the company had essentially trapped itself into offering it.

Prevent managers’ mistakes

As if FMLA wasn’t tricky enough, there are ways employers get in trouble even when employees aren’t covered by the law, as this case shows.

In other cases, employees who hadn’t worked for 12 months or 1,250 hours have been mistakenly told by managers they could take FMLA — and then sued when they came back and didn’t get put in their old jobs.

To avoid this costly blunder, here are three steps all employers can take:

• Check policies. A good FMLA policy tells employees their legal rights and all the requirements they need to meet to be eligible. If you have to, give employees at different locations different versions of the handbook so there’s no confusion.
• Train managers. Managers need to know who’s eligible for leave and who isn’t. Otherwise, employees might be told something that conflicts with the law.
• Make sure HR handles all leave requests. Managers should always come to HR first when an employee needs leave. Make sure they understand the problems that can come up when supervisors approve or deny leave on their own.

Cite: Peters v. Gilead Sciences, Inc.

The facts:

An employee sued after being fired for refusing to sign the company diversity policy. The employee insisted he couldn’t sign anything that required him to “respect the differences of all employees.” His reason: His new religion found homosexuality to be deviant. He supervised a worker who was openly gay, but never discriminated against him. In fact, last year, he promoted him.

The employer said:

If the supervisor can’t follow company policy, he should be fired.

Who won? The supervisor.

Why: A judge said the supervisor had been unfairly fired because of his religious beliefs. Since he had never discriminated against gays, he shouldn’t have been terminated.

Bottom line: No discrimination, no violation.

Dealing with employees’ religion can be touchy, but for a general guide you can ask: Does the belief lead to:

1. conduct that treads on the rights of others in the workplace, or
2. actions that are harmful to business?

Without one of those factors, it’s hard to prove that someone’s conduct in connection with religious beliefs deserves to be disciplined.

Cite: Buonanno v. AT&T Broadband