Most of the time, the employer is the one who gets burned by timekeeping troubles. Here, though, an employee was told to clock out before attending a bridal shower at work but chose to ignore the direct order and clocked out at her normal time (after the party). When she was fired for the falsification of her time records, she vowed to prove it was age discrimination.
Paid for Partying?
Christine Tingle, who is over 40 years of age, worked for Merchants & Marine (M&M) Bank as an hourly employee in the loan department. On a Thursday afternoon in September 2017, M&M Bank hosted a bridal shower for an employee.
A manager notified employees, including Tingle, that the loan department would be closing at 4:00 p.m. for the shower and instructed all employees to clock out at that time. Nevertheless, Tingle didn’t clock out. Instead, she attended the shower and changed into tennis attire before clocking out at 4:30 p.m.
After the shower, the manager checked the time records to confirm her employees had clocked out at 4:00 p.m. as instructed. When she discovered Tingle had not done so, she reported the matter to HR.
The following Monday morning, when Tingle next reported to work, she was called into the HR office and asked why she hadn’t clocked out at 4:00 p.m. as instructed. She said she “just got [her] hours in” and decided to clock out at her normal time of 4:30 p.m. despite her manager’s instructions. During the conversation, Tingle changed her story to say she forgot and asked HR to change the time record.
The HR director told Tingle the correction should have been made earlier, as M&M Bank used an exception form by which hourly employees could fix timekeeping errors, but changes had to be made on the following day at the latest. She further explained that changing the timecard would be fraudulent, especially considering Tingle’s admission she intentionally disobeyed the instructions.
Based on the conversation, the HR director decided to terminate Tingle for falsifying the timecard. M&M Bank later hired a replacement who was under the age of 40.
Unhappily Ever After
Tingle sued, alleging her termination was intentional age discrimination in violation of the Age Discrimination in Employment Act (ADEA). M&M Bank clearly had a legitimate, nondiscriminatory reason to fire her—she engaged in dishonest conduct and falsified her timecard.
So, she had to prove the incident wasn’t the bank’s true reason for firing her but rather was a pretext (or excuse) for discrimination. When she failed to do so, the court granted the employer’s request and dismissed the lawsuit.
Unsatisfied, Tingle asked the appellate court to take another look. She raised two principal arguments in support of her pretext claim. First, she alleged she was treated differently than a younger employee who also falsified timesheets but wasn’t fired. But, the circumstances between Tingle and the other employee were very different:
- Tingle was discharged for intentionally remaining on the clock despite not working and being told to clock out.
- The younger employee wasn’t trying to obtain pay for unworked time, but rather clocked out for her lunch break in the afternoon instead of during the lunch period.
The court focused on the fact that Tingle’s timekeeping error, from M&M Bank’s perspective, was intentional and done for the purpose of obtaining pay for unworked time.
Second, Tingle argued her supervisor and the HR director intentionally refrained from alerting her about the timekeeping issue until it was too late to fix it so they could replace her with a younger employee. Not only was there was no evidence to back the allegation, but no one was obligated to notify Tingle about her mistake—she knew it was her responsibility to initiate the process for submitting a time exception form and correcting the issues.
Her manager explained she reported the incident after Tingle ignored a direct order and remained on the clock despite not working. And the manager checked with payroll to see if the employee had submitted a time exception form before contacting HR.
Essentially for the same reasons, Tingle’s argument that her supervisor, who wasn’t involved in the termination decision, used leverage to get her fired because of her age also failed. As a result, the dismissal stood. Tingle v. Merchants & Marine Bank, Case No. 19-60925 (5th Cir., June 8, 2020).
Advice for Successful (Employment) Relationship
Make sure your timekeeping policies are clear and communicated to your employees—and you’re enforcing them. There should be no question that (1) working off-the-clock is prohibited and (2) staying clocked in and trying to get paid for time not worked means the employee is falsifying records.
If you have expectations about hours worked or a specific event, be sure employees know what they are. M&M Bank benefited from the manager’s e-mail instructing department members to clock out for the shower, so Tingle’s violation of the direct order was unquestionable.
Consult with employment counsel if you aren’t sure your wage and hour policies are in order, which is especially important while employees may be working remotely during the COVID-19 pandemic.
Maggie Spell is a partner in Jones Walker LLP’s labor relations and employment practice. She can be reached in New Orleans at mspell@joneswalker.com.
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