If the employer is not able to establish that they treated the employee differently for a justifiable, non-discriminatory reason, the likelihood of losing the lawsuit goes up significantly. Written policies also provide notice to employees of what to expect when they engage in the behavior covered by the written policy. Members can get help with HR questions via phone, chat or email. A few months after the company denied Mr. Pickards request for accommodation, he was caught sleeping in a company truck during a brief break and was fired. Here are a few basic principles that will help your company stay out of legal trouble. In this electronic age, many managers dont recognize the importance of face-to-face communication or the need to show appreciation. +1 (408) 689-8205 But because the policy at issue was vague, ever-evolving, and inconsistently enforced, the Utah Court of Appeals held that the employers explanation for why it had terminated the employee was pretextual, holding that it was liable for discrimination and/or retaliation. Sign up to stay informed. Your policies tell both the company and its employees what is expected of them and what procedures will be followed when policies are violated. The HR department has a big stake in ensuring that an organization's promotions process is well-managed, by helping to guide employees' career paths, maintaining clear policies and keeping. Voorhees, NJ 08043, MEMBER LOGIN However, the employer should avoid being more lenient with one hourly employee who has tardiness issues than a co-worker with similar problems, particularly when they perform the same work under the same circumstances. Cookie information is stored in your browser and performs functions such as recognising you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful. Manage Policies Better With ComplianceBridge Making sure policies are consistently enforced can take a lot of work, but it doesn't have to with ComplianceBridge. Please log in as a SHRM member. Be ready to explain what is policy inconsistency from your perspective. Hexcel never put these evolutions and modifications of the rule into writing. If you keep a database on a running basis, you can pull the information out and hand it over. Inconsistent Enforcement of Policies By: Susan S. Hodges, Esq. Not only does inconsistent enforcement of company policies around pay damage morale, it also violates the law. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. Workplace harassment is another area where consistent enforcement of policies is of the utmost importance people need to feel safe at work, so there cant be any question on what constitutes acceptable behavior. Ask why this policy was in place, Hasl-Kelchner recommends. Counsel and Chair, Employment and Labor Department, Parker McCay P.A. Otherwise, an employee might argue that the policy created a contract promising that employees would be fired only once they have exhausted every procedure in your companys discipline policy. In addition, the exact parameters of the no-sleeping rule were not clearly established. Managers must impose discipline consistently. Failure to document. Thorough documentation related to an action taken against an employee can be one of the greatest tools an employer can have to defeat a discrimination claim. When asked by businesses what they can do to avoid legal claims by employees, one of the first things I tell them is to be consistent when applying workplace policies and rules. listings on the site are paid attorney advertisements. We are using cookies to give you the best experience on our website. By clicking Accept, you consent to the use of ALL the cookies. Prior to the meeting, photocopy proof of the inconsistency, as well as your notes, and provide your supervisor with a copy. SHRM's HR Knowledge Advisors offer guidance and resources to assist members with their HR inquiries. Discuss any incidents that you witnessed of inconsistency and not events you learned about through secondhand information. Your session has expired. Say, We just reviewed our policies, this is why this policy was there, this is why we want to enforce it, and this is how it makes the workplace better. Communicate that employees and managers are in it together.. Work rules protect your business and your workers, and if correctly implemented and executed, they create and maintain a better work environment for all. Avoid legal pitfalls when you discipline employees. Wage and hour lawsuits are on the rise. Federal and state laws give employees the right to take time off for a variety of reasons, including family and medical leave, pregnancy disability leave, military leave, leave to handle domestic violence issues, time off to attend a childs school activities, and more. This article does not purport to offer legal advice in any form, is not a comprehensive legal assessment, and may include the individual opinion of the writer. ORLANDO, FLA.Want to know how to avoid lawsuits against your organization? And trying to do so can be expensive. (a) After a final decision on the merits has issued and before imposing the sanctions and penalties described in paragraph (d) of this section, the Director of OLMS will consult with the affected contracting agencies, and provide the heads of those agencies the opportunity to respond and provide written objections. As a result, employees and managers were, at times, unclear about the state of the company's policies.". Updating policies is step one, but making sure everyone has access to the most current version is just as important. Counsel and Chair, Employment and Labor Department,Parker McCay P.A. The court later granted Kohler a motion for judgment as a matter of law and overturned the jury's verdict on retaliation. 1990)). moreinfo@compliancebridge.com. Sometimes supervisors will say, That rule is only a guideline or I thought I should show some leniency toward a longtime employee, Bogas says. Failure to be thorough on performance evaluations. Without consistency, the line between rules and suggestions begins to blur, and hope for a fair working environment goes out the window. Martindale-Hubbell validates that a reviewer is a person with a valid email address. It's important that supervisors' political views don't lead to inconsistent enforcement of policies. Your session has expired. ComplianceBridge Corporation This means that every time you visit this website you will need to enable or disable cookies again. Kohler did terminate Reynolds, but never investigated whether the white employee was doing the same thing that Reynolds was doing. Best Practices for Terminating an Employee, Discrimination Lawsuits: Basics for Employers. However, all employers benefit from having written policies. You should state actual company practices, not a wish list, adds Linda Johnson, a partner and chair of the employment law practice in McLane, Graf, Raulerson & Middleton, New Hampshires largest law firm. Don't Let Dormant Policies Lie Workplace rules that are ignored or applied unevenly could undermine your business and expose your company to costly lawsuits.Handbook policies are supposed. In a later jury trial, the jury found in favor of Kohler on the underlying discrimination claim, but against Kohler on the retaliation claim and awarded Reynolds $40,000.00 in compensatory damages and $50,000.00 in punitive damages. var currentUrl = window.location.href.toLowerCase(); Failure to apply policies consistently. Before disciplining employees, especially termination, employers should consider whether the conduct is protected by law, either federal or state; whether the conduct violated an employer policy; does the company have a legitimate business . } TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. Stay up-to-date with how the law affects your life. Consistent enforcement would not benefit OP in any way, and so the only concern is fairness across the whole community. State Laws Federal Laws Topics Articles Resources. Companies dont have free reign to create any policy they want, but they do have the right to create policies around matters such as ethics, pay, and behavior. Join us at SHRM23 as we drive change in the world of work with in-depth insights into all things HR. Shortly thereafter, on January 6, 1998, the human resources director recommended that Reynolds be terminated. It is vital that Utah employers draft clear policies that are consistently enforced. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. People who submit reviews are either individuals who consulted with the lawyer/law firm or who hired the lawyer/law firm and want to share their experience of that lawyer or law firm with other potential clients. During the six years of his employment, company attendance policies and practices changed several times. Inconsistencies. Ensure they know they will be held to the same high standards when posting to Facebook or out at the local bar as they are at work. There are few things that seem to get well-intentioned employers into more trouble than when they apply workplace policies differently to similarly situated employees. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. You have successfully saved this page as a bookmark. Employment Lawyer: I Was Fired and My Employer Won't Give Me My Final Paycheck: What Should I Do? 10. The court agreed with the EEOCs argument that a jury reasonably concluded there was retaliation for complaining about discrimination in light of Kohlers inconsistent enforcement of its policies and discipline. 8. In the event of any inconsistencies between the terms and conditions of this Article X and any other . To request permission for specific items, click on the reuse permissions button on the page where you find the item. FindLaws team of legal writers and attorneys, Employers Must Enforce Policies Uniformly. If you need to terminate an employee, diversify the risk by getting a second person involved in the decision, he advised. Your company will lose the court case every time. Get the latest significant legal alerts, news, webinars, and insights that affect your industry. Your company develops policies as a way mitigate risk and ensure operational excellence. . Distinguished: An excellent rating for a lawyer with some experience. +1 (800) 317-2820 Policies have to be changed to reflect changes in the law and changes in society.. It concluded that in granting Mr. Pickard damages for lost wages, plus the funds he had to withdraw from his savings accounts to compensate for these lost wages, the Commission had given him an impermissible double recovery.. Inconsistent enforcement of company policies happens when policy development exists separately from training In business, policies sit at the intersection of laws and other regulatory issues and employee conduct. Stateline, NV 89449 if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { The inconsistent enforcement of its own policies reinforces the need for Twitter to be far more transparent about how it interprets and enforces its own community standards. Having multiple variations of the same policy floating around can lead to all sorts of issues. A reader's particular legal position is dependent upon the facts of the specific situation. If you have not recently reviewed and updated your handbook, it is time to do so. First, it provides a record of how similar situations were handled in the past. 2. Should you need assistance with this, the Labor and Employment attorneys at Ballard Spahr LLP have decades of experience in advising public and private employers in policies and compliance and any other labor-related issues that may arise. However, in a pending lawsuit, Miller v. Canadian National Railway Co., the issue is being raised in a different context: whether alleged inconsistent enforcement was racially motivated . Chamber of Commerce Southern New Jersey Together, policies and procedures provide a roadmap for day-to-day operations. In addition to reviewing policies to make them consistent with changes in the law and changes in society, another reason to look them over is to make sure they still make sense in your workplace. This website uses cookies to improve your experience while you navigate through the website. In the past few years, companies have had to develop policies for cell phones, use of cell phones in company cars, and employee weblogs, Johnson says. For information regarding a specific legal issue affecting you, pleasecontact an attorney in your area. Morale tanks when employees see that certain individuals receive. Compare your list of inconsistencies to your handbook, as well as departmental policies, your job description and procedures that you follow to perform your job duties. Later, the company circulated a memorandum expressing its intent to begin enforcing the no-sleeping rule and informing its employees that a violation would result in termination. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher. Invite debate., Track use of policies. Your company will lose the court case every time. Defend data in Salesforce, Google, AWS, and beyond. Attorneys that receive reviews from their peers, but not a sufficient number to establish a Martindale-Hubbell Peer Review Rating, will have those reviews display on our websites. New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences, SHRM Research: Work Is Negatively Impacting Employees Mental Health, AI-as-a-Service: Getting SMBs Started with AI. People dont think that people conspire, he said. In other words, employees who commit the same misconduct or display the same performance problems should be treated in the same manner. We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. www.ballardspahr.com This was demonstrated rather starkly in Equal Employment Opportunity Commissioner v. Kohler Co., in which the 8th Circuit Court of Appeals reversed a summary judgment in favor of the employer because the employer failed to enforce its discliplinary policies uniformly. If your company disciplines employees for absences (as most do), make sure you are not inadvertently punishing employees for exercising their legal rights. If you mean what you say, then do what you say.. Used right, your companys discipline system will help managers recognize problems early, work with employees to turn performance around, and ensure that employees know what the company expects. For questions, contact Susan Hodges at shodges@parkermccay.com. The Facebook Oversight Board, in deciding its first cases, overturned five out of six of the company's decisions. ComplianceBridge Corporation It is vital that Utah employers draft clear policies that are consistently enforced. New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences, Automate HR reporting and analytics with Employee Cycle, SHRM Research: Work Is Negatively Impacting Employees Mental Health, AI-as-a-Service: Getting SMBs Started with AI. Copyright 2023 MH Sub I, LLC dba Internet Brands. Its easy to see why a manager wouldnt enforce an antiquated, useless policy. (No claim to original U.S. government material.). Social and technological developments over the last decade also require employer response. Although this seems like common sense, too many employers operate daily without even their most basic policies written down. Managers should also be careful when they speak to employees about discipline. If you allow people to come in late despite your attendance policy, then you dont have a policy, says Rosemary Pye, regional director in the Boston office of the National Labor Relations Board. This rating signifies that a large number of the lawyers peers rank him or her at the highest level of professional excellence for their legal knowledge, communication skills and ethical standards. Please log in as a SHRM member before saving bookmarks. Kathleen Bogas, president of the National Employment Lawyers Associationan employee rights advocacy groupand a partner in Eisenberg & Bogas of Bloomfield Hills, Mich., gives the following example, based on a composite of cases from her practice. Alabama State Bar rules require the following: "No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.". Ruth Mayhew has been writing since the mid-1980s, and she has been an HR subject matter expert since 1995. Although the court reduced the amount of Mr. Pickards damages, the Hexcel case serves as a warning and reminder to employers that taking an adverse action against an employee on the basis of an inconsistent, unclear policy can have serious consequences and lead to costly litigation. Inconsistent Administration The keys to consistent and fair administration of workplace policies are training and accountability. If they like you, they wont sue you. Furthermore, the human resources director testified that although the white employee's time card showed the same hours as Reynolds - so much so that it prompted Kohler to accuse Reynolds of clocking in and out for the white employee - neither the human resources director nor Kohler questioned the white employee about the oddity or investigated whether he was working his full eight hour shift. However, at some point during his employment, he developed a habit of clocking in at 6:00 a.m. and clocking out at 2:30 p.m. Virtual & Las Vegas | June 11-14, 2023. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Built In found that diverse companies see 1.4 times more revenue, 2.3 times more cash flow per employee, and are 70% more likely to capture new markets. In seeking damages for discrimination/retaliation, employees are not entitled to double recovery. For example, an employee may recover lost wages, or the amount of funds they were required to withdraw from savings during the time that they were unemployed, but they may not recover both. When a case goes to court, he said, My HR professional is always my star witness. 297 Kingsbury Grade, Suite 1180 By documenting the action and the reward or punishment that accompanied it, managers can make sure to treat similar actions similarly and catch inconsistencies before they become too problematic. However, they also have an obligation to respect the rights of their employees. Currently, 32 states have proposed legislative changes to extend leave time, Zandy said. Im never quite sure what theyre going to say.. 9. Money: Filing a Complaint with HR Can Be Scary. Handbook policies are supposed to be your friend, there to help protect your organization from lawsuits, not blow up in your face and make your employer more likely to be sued. Under company policy, employees were not allowed to clock in or out at unauthorized times without a foremans permission, but, in fact, employees frequently did so without repercussions. I encourage employers to keep a database to track the level of discipline for different infractions, Burak says. Members may download one copy of our sample forms and templates for your personal use within your organization. The likelihood of being hit with claims of unequal treatment is heightened if noncompliance with the policy results in the use of discipline. Its challenging to enforce something you dont understand, but when careers are on the line, you want to make sure that people fully grasp what they are dealing with. Managers who fire off angry e-mail messages to their staff should understand that they might be called to the witness stand to explain their messages, he said. This case is a cautionary tale for employers who believe they have caught an employee "hands down" in a violation of company policy and are ready to terminate. Managers must impose discipline consistently. Despite Dicksons order, many employees continued to clock in at nonstandard times. Need help with a specific HR issue like coronavirus or FLSA? } The laws enforced by EEOC prohibit an employer or other covered entity from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including gender identity, sexual . The last updated date refers to the last time this article was reviewed by FindLaw or one of ourcontributing authors. The company began to enforce this policy in 1996, when plant manager John Dickson ordered all employees to clock in no earlier than 15 minutes before their shifts began. Use it as a teaching moment. Strictly Necessary Cookie should be enabled at all times so that we can save your preferences for cookie settings. When he applied for unemployment and was turned down, he appealed the case to the U.S. Court of Appeals for the District of Columbia. Employers cannot prohibit their workers from revealing that they have been disciplined. All terms and conditions of the Loan Agreement not inconsistent herewith shall remain in full force and effect and are hereby ratified and confirmed by Borrowers. Moreover, employers generally can't assure their employees that disciplinary matters will remain confidential. }); if($('.container-footer').length > 1){ All Rights Reserved. There are one of the first things that lawyers ask about when a lawsuit is filed. Give managers just enough information so they know when to contact the HR team, which has a detailed knowledge of leave laws. Thorough trainings around DE&I should help these policies be enforced more consistently, mitigating the concern of discrimination and leading to a more equitable environment. Find out more about ComplianceBridges Policy & Procedure Software, as well as its Risk Management Software by watching a two-minute demo. Supplemental Terms. Managing the employees in your workplace effectively necessitates that even the smallest of businesses set up work rules. View More. Copyright 2023, Thomson Reuters. SHRM's HR Knowledge Advisors offer guidance and resources to assist members with their HR inquiries. Windows & NAS Monitor and protect your file shares and hybrid NAS. Lawyers from our extensive network are ready to answer your question. advice, does not constitute a lawyer referral service, and no attorney-client or HR professionals understand the need for documentation of each step in progressive discipline, but often managers dont. Not only does inconsistent enforcement of company policies negatively impact the culture, but it also opens the doors for lawsuits against the company. What are the different Martindale-Hubbell Peer Review Ratings?*. Sounds like trouble and a potential lawsuit. Inconsistent policies and disparate treatment of workers can be grounds for taking legal action against the company, according to the National Law Review. $("span.current-site").html("SHRM MENA "); Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRMs permission. Dont permit them to play favorites. The information provided on this site is not legal Perhaps most significantly, however, is that it fosters an environment for discrimination lawsuits. } Managers need to be trained on the ins and outs of these critical employment laws. 2003)). National Law Review: Does Inconsistency Always Kill the Cat? When managers dont get performance evaluations done on time or dont carefully consider what they write, employees get upset and feel unappreciated, he said. 4. For help drafting or reviewing your company's leave policy and other documents, and for advice on whether you . Employers should periodically take the time to train supervisors on what the policies are and why they must apply them consistently. Watch Demo Now. The absence of a clear legal standard upon which companies can base their policies, as well as the importance of context in determining whether or not a post containing known harmful words constitutes hate speech, makes finding technical solutions incredibly challenging. Proving discrimination cases is very hard when you have two people. Please confirm that you want to proceed with deleting bookmark. More lawsuits are being filed alleging technical violations of the federal Family and Medical Leave Act. But sometimes policies outstay their welcome. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Another source of inconsistencies stemming from outdated policies is a lack of organization, particularly when it comes to weeding out the old versions. If your boss only enforces a rule when you break it, that could be a sign of discrimination or workplace retaliation. Second, documenting actions taken against employees captures at the time the action is taken the employers rationale for inconsistently applying established policies or past practice. All rights reserved. Managers often are uncomfortable with conflict and tend to ignore it, creating unhappy workers. The attorney Whether your employment record or performance is at issue or you simply want clarification of the workplace policies, appeal inconsistent workplace policies to ensure you have current information about your job and policies youre required to follow. Companies who consistently apply workplace policies to similarly situated employees are less likely to face and lose discrimination claims. MEMBER NEWS Good evaluations win lawsuits. One example of the problem you can face when you fail follow your own policy is the risk of having legal action brought against you for discrimination. Its much easier that way than developing the information from scratch., Review your employee handbook. By better managing policies, making sure the right people see them, and ensuring everyone understands their content, inconsistent enforcement of company policies can be a thing of the past. Cookie information is stored in your browser and performs functions such as recognising you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful. "Our policies allow content that may be . The content of the responses is entirely from reviewers. If you disable this cookie, we will not be able to save your preferences. If managers play favorites or come down harder on some employees than others, it could result in a discrimination claim against your company by an employee who feels that a protected characteristic, such as race or disability, played a role in the managers decision. If your company has a progressive discipline policy (one that imposes increasingly severe measures for repeated or more serious problems), it should clearly say that the company has the discretion to decide whether and when to use these steps. This will help management enforce policies consistently, lessening the chance of real or perceived favoritism. You have successfully saved this page as a bookmark. But the employee said that he frequently didnt follow the policy and that his immediate supervisor acquiesced in his violations. Additionally, all managers and supervisors should receive training about policies and the importance of enforcing them fairly and consistently. moreinfo@compliancebridge.com. 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inconsistent enforcement of company policies