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. var currentUrl = window.location.href.toLowerCase(); Lawyers from our extensive network are ready to answer your question. Members may download one copy of our sample forms and templates for your personal use within your organization. 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. 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. Documentation shows fairness, and shows jurors and judges that the managers response wasnt a knee-jerk reaction, Zandy said. Inconsistent policies and disparate treatment of workers can be grounds for taking legal action against the company, according to the National Law Review. For example, an employer may be more lenient with a manager coming in late to work than with an hourly employee because the manager does not work a fixed schedule. Inconsistent Administration The keys to consistent and fair administration of workplace policies are training and accountability. Hexcel never put these evolutions and modifications of the rule into writing. Bad evaluations drive settlements, Zandy said. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Core use cases Data discovery & classification Compliance management Least privilege automation Ransomware prevention 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 . +1 (800) 317-2820 Please purchase a SHRM membership before saving bookmarks. 63% of organizations say their policy management program helps reduce legal costs and resolution time of regulatory issues and fines. Currently, 32 states have proposed legislative changes to extend leave time, Zandy said. 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. She is a member of the Human Resource Association of Central Connecticut. The Commission determined that Mr. Pickard had made out a prima facia case of discrimination on the basis of his disability, and that Hexcels allegedly nondiscriminatory basis for firing him based on the no-sleeping rule was pretextual, because the rule was incoherent and inconsistently applied. The Utah Court of Appeals affirmed, finding that the Commissions determination was supported by substantial evidence and was not clearly erroneous. Generally speaking, a jury thinks, Why should the company owner be treated better than Joe on the production line? If a rule says all employees, it should mean all.. For an employee to successfully claim discrimination or harassment, they must prove they were treated differently than their colleagues. As a result, employees and managers were, at times, unclear about the state of the companys policies. Keeping policies updated ensures that they are still relevant. Readers should contact an attorney for application of the law and regulations to their specific fact situation. Here are a few basic principles that will help your company stay out of legal trouble. 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. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. Be ready to explain what is policy inconsistency from your perspective. Counsel and Chair, Employment and Labor Department, Parker McCay P.A. RESOURCE CENTER Good evaluations win lawsuits. The EPAs definition of pay covers all forms of compensation, including bonuses, vacation and holiday pay, overtime, gas allowances, benefits, and reimbursements. Social and technological developments over the last decade also require employer response. If you are a business that does not have their policies in writing, needs help training supervisors, or needs the forms and tools necessary to document employment actions, please feel free to contact me at (678) 446-0865. In relation to consistency, documenting actions taken against employees does two things. In this case, highlight the company policy that states disciplinary actions are removed from employees files after one year. Wage and hour lawsuits are on the rise. Policies have to be changed to reflect changes in the law and changes in society.. Inconsistent enforcement opens the door for the employee's attorney to . moreinfo@compliancebridge.com. HR professionals dont get companies sued. It's become a troubling trend in employment law cases: Front-line managers blatantly admit to not knowing about laws like the FMLA or the ADA. 2003)). Find the latest news and members-only resources that can help employers navigate in an uncertain economy. In other words, employees who commit the same misconduct or display the same performance problems should be treated in the same manner. To help improve consistency, employers should make sure all policies are in writing, managers and supervisors are properly trained, and that all employment actions are documented, especially when an employer decides to deviate from established policies. This advice applies whether you are changing a policy or adding a new one. When a policy falls out of use, it can become useless to an employer, even if the employer has provided training on the policy, an unemployment insurance case from the District of Columbia illustrates. Employers should document every actions taken against employees. Ruth Mayhew has been writing since the mid-1980s, and she has been an HR subject matter expert since 1995. Training around certain policies may be fairly straightforward, theres only so much to learn about the dress code, but that isnt the case across the board. One way to do this is to keep detailed records of policy enforcement. Companies who consistently apply workplace policies to similarly situated employees are less likely to face and lose discrimination claims. 5 Ways to Address Inconsistent Application of Workplace Policies. 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. The information provided on this site is not legal These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. Support your claims with side-by-side comparison of the the company policies that appear confusing, contradictory and inconsistent. There are one of the first things that lawyers ask about when a lawsuit is filed. (You may not fire an employee for discriminatory reasons, for example, or to retaliate against the employee for complaining of illegal activity, such as unpaid wages or safety violations.). Your session has expired. 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. Sounds like trouble and a potential lawsuit. 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. Many other states, including Massachusetts, Nebraska and New Mexico, have similar standards for deciding whether an employee is entitled to benefits after being fired for violation of a company rule. Even after this, Hexcels enforcement of the no-sleeping rule was inconsistent. When a case goes to court, he said, My HR professional is always my star witness. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have. Employers should periodically take the time to train supervisors on what the policies are and why they must apply them consistently. This evidence will go a long way in defeating a discrimination claim. If the company varies how they handle compensation unfairly, they could be at risk. $("span.current-site").html("SHRM MENA "); Failure to administer leave. After Reynolds had been there about six years, his supervisor allegedly began to enforce these policies against him but not against other, similarly situated co-workers who clocked in and out at similar nonstandard hours. var temp_style = document.createElement('style'); var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); 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. Fortunately, preventing successful discrimination/retaliation claims can be a simple matter of routinely reviewing and updating your companys handbook, policies, and verifying consistent compliance with the same. One of those rights is equal pay for equal work, and according to The Equal Pay Act (EPA), pay includes more than just a salary. 297 Kingsbury Grade, Suite 1180 It is vital that Utah employers draft clear policies that are consistently enforced. Train supervisors. 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. Without consistency, the line between rules and suggestions begins to blur, and hope for a fair working environment goes out the window. View More. Inconsistent Enforcement of Company Policies. 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. Having access to HR experts is the best way to ensure your company is enforcing its policies consistently. The company didnt rebut his evidence. She holds a Master of Arts in sociology from the University of Missouri-Kansas City. www.ballardspahr.com confidential relationship is or should be formed by use of the site. If you disable this cookie, we will not be able to save your preferences. Details for individual reviews received before 2009 are not displayed. Documents that are created at the time the decision is made to deviate from established policies or practices can help defeat allegations that the employer fabricated the justification after the claim was filed simply to avoid liability. Failure to follow up on complaints. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Managers and supervisors are in a position of power, so they need to be extra careful with how they act, learn to recognize unacceptable behavior, and know what to do if they see or hear about it. You can include issues related to an inconsistent person in a supervisory role. MEMBER EVENTS We make every effort to keep our articles updated. But opting out of some of these cookies may have an effect on your browsing experience. Updating policies is step one, but making sure everyone has access to the most current version is just as important. But juries think you should be even in your application of rules. 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. Your policies tell both the company and its employees what is expected of them and what procedures will be followed when policies are violated. 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. If your boss only enforces a rule when you break it, that could be a sign of discrimination or workplace retaliation. 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. JOB BOARD, 2023 Chamber of Commerce Southern New Jersey CCSNJ, Diverse But United: Asian American Pacific Islander Heritage Month. Im never quite sure what theyre going to say.. 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. For many employers, the biggest problem with the inconsistent application of policies comes from supervisors who are either 1) unaware of what the companys policies are or 2) aware of the policies but decide to ignore them. MEMBER NEWS We are using cookies to give you the best experience on our website. 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. 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. Configuration management involves making sure that the proper APN and dial strings are used, and that peripheral devices and ports are off or on as dictated by policy. Dont permit them to play favorites. The last updated date refers to the last time this article was reviewed by FindLaw or one of ourcontributing authors. Can I Legally Decline Signing a Performance Appraisal. Have someone in HR be a central repository for information on how supervisors are using company policies, Johnson recommends. Do you have a policy? Thats because realworld practice often ends up trumping languishing handbook policies in court. Reasons for policy failure include the absence of these two. }); if($('.container-footer').length > 1){ An employer offers inconsistent explanations for an adverse action - first offering one reason and then backtracking and offering a different reason. advice, does not constitute a lawyer referral service, and no attorney-client or Any deviation from established rules must be the product of legitimate and justifiable exception to the established rule. When an HOA enforces rules inconsistently, it may be held liable for violating the Fair Housing Act (FHA). After the injury, his doctor recommended that he not stand, sit, or walk for extended periods. We are using cookies to give you the best experience on our website. Having multiple variations of the same policy floating around can lead to all sorts of issues. Another source of inconsistencies stemming from outdated policies is a lack of organization, particularly when it comes to weeding out the old versions. Managers should also be careful when they speak to employees about discipline. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. Inconsistent enforcement of company policies can be extremely frustrating. Consistent enforcement would not benefit OP in any way, and so the only concern is fairness across the whole community. To avoid problems, policies should be clearly documented. Enforce a policy for one employee, but not for anotherand guess what? Some devices lose their setting if the battery dies. Virtual & Las Vegas | June 11-14, 2023. andbook 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. Diane Cadrain is an attorney and writer who has been covering workplace legal issues for 20 years. (No claim to original U.S. government material.). Managers should not, for instance, promise that employees will have a bright future at the company if they can improve their performance. 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. The written policies serves as a reference that managers and supervisors can refer to when taking action against different employees, thus reducing the likelihood that they discipline employees inconsistently. 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.. For example, your company has a dress code policy that does not allow jeans to be worn in the workplace. Please log in as a SHRM member before saving bookmarks. Your company develops policies as a way mitigate risk and ensure operational excellence. Obtain any revised copies of the employee handbook that were disseminated to employees after you received your first copy. Giving preferential treatment to certain employees, even if its accidental, is discriminatory against others, and firing one employee for actions another received a slap on the wrist for could qualify as unlawful termination. 2023 ComplianceBridge Corporation. The easiest way an employer can increase the consistent application of rules is to put them in writing. Failure to pay correctly. Kohler also maintained a policy that employees who had a per-hour quota could leave work early if they met that quota before the end of their eighthour shift. Use whatever means is most effective, including multiple means such as posting fliers, distributing handouts and sending emails that will bring the change to the attention of all employees. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. } If they are not enforced, they are like tools rusting away, unused in the garage. FindLaws team of legal writers and attorneys, Employers Must Enforce Policies Uniformly. Inconsistencies. In December 1997 Kohler's human resources director met with Reynolds to discuss his clocking in and out early. I encourage employers to keep a database to track the level of discipline for different infractions, Burak says. 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. You have successfully saved this page as a bookmark. Worse, if they are enforced unevenly among employees, they can become tools of destruction. However, discipline can also lead to legal problems, particularly if your companys policy doesnt protect your right to terminate at will, managers discipline employees inconsistently, or managers discipline employees for illegal reasons. Ruth resides in the nation's capital, Washington, D.C. How to Write a Letter Complaining About an Unfair Workplace. $(document).ready(function () { 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. 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. However, all employers benefit from having written policies. Watch Demo Now. 16 Sheharizadian 8 mo. Despite Dicksons order, many employees continued to clock in at nonstandard times. We also use third-party cookies that help us analyze and understand how you use this website. Having well-written employment policies is a good thing, but it is only half the battle. The plaintiff, John Reynolds, was terminated on January 6, 1998, purportedly for not clocking in at the correct time. National Law Review: Does Inconsistency Always Kill the Cat? 220 Laurel Road, Suite 203 9. Frequently, this process of deduction leads the employee to conclude that the employer treated them differently because of their protected status (race, religion, sex, etc.). Managers must impose discipline consistently. Failure to document. Tax Season Special! 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. Inconsistent Enforcement of Policies By: Susan S. Hodges, Esq. Copyright 2023 by Ballard Spahr LLP. HR professionals understand the need for documentation of each step in progressive discipline, but often managers dont. These cookies will be stored in your browser only with your consent. 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.. Written by Abby Nash on September 20, 2021. . else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { For example, assume your handbook says employees disciplinary actions will be removed from their employment files one year after the date of the incident. This means they may quit at any time, for any reason, and your company may fire them at any time, for any reason that is legal. Policies and procedures are an essential part of any organization. Failure to manage in person. When managers and supervisors discipline them in a manner that is consistent with the policy, those employees have less leeway to argue that their discipline was discriminatory and unjustified. ORLANDO, FLA.Want to know how to avoid lawsuits against your organization? Document instances of what you believe are inconsistent workplace policies. Fortunately, there are several steps employers can take to ensure that employee policies are communicated, understood and followed. Best Practices for Terminating an Employee, Discrimination Lawsuits: Basics for Employers. If you mean what you say, then do what you say.. While managers might consider rules and procedures surrounding pay to be a pain in the neck, they need to know what could happen if the company faces a lawsuit or a U.S. Department of Labor audit. Keeping policies up to date helps ensure that the policy is doing what its supposed to protecting the company and those working for it. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { Other workers were told that they could nap anywhere, as long as they were on a break. Have employees in more than one state? 1990)). All Rights Reserved. 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. Legal Issues to Consider When Disciplining Employees, How to Discipline Employees in a Small Business, How to Avoid Legal Trouble When Conducting Performance Reviews, What to Include in Your Employee Handbook. It is vital that Utah employers draft clear policies that are consistently enforced. Give managers just enough information so they know when to contact the HR team, which has a detailed knowledge of leave laws. Written by Abby Nash on September 20, 2021. If you have not recently reviewed and updated your handbook, it is time to do so. Dori Meinert is a senior writer at HR Magazine. You should then appeal the written warning thats still in your file from two years ago. Inconsistent enforcement of company policies is practically an invitation for claims of discrimination under state and federal anti-bias laws. When employees are treated differently from co-workers, they attempt to deduce their employers motive in doing so. Having good policies, and enforcing those policies, promotes efficiency and high morale among employees. Moreover, employers generally can't assure their employees that disciplinary matters will remain confidential. Virtual & Las Vegas | June 11-14, 2023. Your access of/to and use | Last reviewed March 26, 2008. When youve investigated an employees complaint and reached a decision, let the worker know how it turned out. For small businesses, most work rules will be optional. } A policy that is vague, evolving, or inconsistently enforced will support an employee's claim for discrimination/retaliation. Windows & NAS Monitor and protect your file shares and hybrid NAS. Inconsistent enforcement opens the door for the employees attorney to allege discrimination, Zandy said. 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. There are many reasons why employers should be concerned about inconsistently applying work rules. Worse, if employees have the wrong version, they could end up blindsided by a policy they thought they understood. The court later granted Kohler a motion for judgment as a matter of law and overturned the jury's verdict on retaliation. But that rule, too, was enforced off and on. Managers need to be trained on the ins and outs of these critical employment laws. Its much easier that way than developing the information from scratch., Review your employee handbook. Kohler did terminate Reynolds, but never investigated whether the white employee was doing the same thing that Reynolds was doing. Voorhees, NJ 08043, MEMBER LOGIN If you discipline an employee for taking leave to which the employee is legally entitled, you are asking for trouble. Failure to apply policies consistently. 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. They ensure compliance with laws and regulations, give guidance for decision-making, and streamline internal processes. 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. Most companies outline procedures for bringing forward complaints, according to Money. 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. what is the penalty for filing single when married, christine mccarthy political party, barbrook reservoir wild swimming,