A final warning against a union-organizing employee for "stealing time" was ruled unlawful by the National Labor Relations Board (NLRB) partly because the warning was more severe than discipline for similar or worse time stealing by other workers. The employee was, however, lawfully fired for violating safety rules later, the NLRB decided in Genpak LLC.
"This case is a good example of what often trips up employers: inconsistent discipline," said Thomas Payne, an attorney with Barnes & Thornburg in Indianapolis.
Clearly delineate and communicate workplace rules. "All employers should have strict requirements about employees clocking in before performing any work and clocking out before conducting any other personal business at the end of a shift," said Carrie Hoffman, an attorney with Foley & Lardner in Dallas.
Dawdling Before the Time Clock, Followed by Safety Violation
A supervisor who was reviewing camera footage around a time clock while trying to locate an employee who had not returned from a break saw a different employee—who had been a primary union organizer—standing in front of the time clock for about 10 minutes before clocking out. The company issued the worker a final written warning for stealing time.
The business subsequently discharged the employee for violating the company's zero-tolerance lockout/tagout policy by placing his entire upper torso past a machine's guards to look inside the machine while it was still running. The policy made clear that...
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