You catch a not-so-good employee sleeping on the job, and you
want to fire him. You call your attorney, and the attorney asks how
you have handled similar situations in the past. You tell the
attorney it has been a mixed bag, but usually, employees caught
sleeping on the job have been given a final warning. The attorney
tells you "consistency is everything" in an employment
case, and advises that you should not terminate the employee,
noting "too much risk."
This sort of situation plays out quite often under labor
contracts where the worry is that a labor arbitrator will reinstate
a grievant if there is evidence the employee is being treated more
harshly than prior employees who committed similar offenses.
Likewise, in employment-related lawsuits, there is concern a jury
will find discrimination, and award significant damages, if there
is evidence the employee was treated more harshly than others who
committed a similar offense.
