Answer from Kelley, PHR: The most risk-averse approach would be to terminate this employee as well. Any time you deviate from consistent disciplinary practices—in this case terminating for forging timesheets—you open your organization up to greater risk of discrimination claims. This employee would no doubt appreciate not losing his job. But former and future employees terminated for this same offense could claim that their termination was discriminatory—that it was based on a protected class or protected activity. Responding to a discrimination claim can be costly, even if you eventually win.
A more risk-tolerant approach would be to document how this situation is different from the others that resulted in termination. For example, this employee may have had consistently good performance while the other dismissed employees did not. If you decide to give this employee a second chance, it’s important to communicate just how serious forging timesheets is and what will happen if he does it again. Document your conversation.
Another risk-tolerant approach would be to change your disciplinary practices. This could entail giving a written warning for the first policy violation and then terminating for the second. If you decide to change your policy or practices around discipline and termination, make sure the changes are documented, clearly communicated to employees, and consistently applied moving forward.
Ultimately, nothing you do can guarantee that an employee won’t call a lawyer, the Equal Employment Opportunity Commission, or some other government agency and claim that their discipline or termination was for an illegal reason. That said, you can take steps to reduce risk. Clear, consistently enforced policies and practices are your best line of defense.