A policy that made sense to add at one point may lurk around long after it has stopped serving a business purpose. Some rules affect certain workers more than others Companies should have rules that apply evenly to all workers and should strive to consistently enforce those rules. Use it as a teaching moment. Inconsistent enforcement also applies to rules that are in force but not applied. ORLANDO, FLA.Want to know how to avoid lawsuits against your organization? 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. Readers should contact an attorney for application of the law and regulations to their specific fact situation. Sounds like trouble and a potential lawsuit. However, this rule was not enforced. If you disable this cookie, we will not be able to save your preferences. Sign up to stay informed. And assuming the policies they have are legal, Companies have the right to enforce them. Circuit Court of Appeals, which found in Kohlers favor on the discrimination claim, but for the EEOC on the retaliation claim (EEOC v. Kohler Co., 335 F.3d 766 (8th Cir. Not only does inconsistent enforcement of company policies around pay damage morale, it also violates the law. Document All Policy Enforcement Managers should document whenever an employee is disciplined or rewarded and cite the specific policies that prompted that action. State Laws Federal Laws Topics Articles Resources. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { It can negatively affect employee morale, lead to higher employee turnover rates, and create contention among co-workers, among other things. This advice applies whether you are changing a policy or adding a new one. And trying to do so can be expensive. Can a Union Employee File a Charge of Wrongful Termination? 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. The Eighth Circuit covers South Dakota, North Dakota, Nebraska, Missouri, Minnesota, Iowa and Arkansas. Defend data in Salesforce, Google, AWS, and beyond. Reynolds did not provide the names of those employees, and the human resources director did not investigate his allegations. The likelihood of being hit with claims of unequal treatment is heightened if noncompliance with the policy results in the use of discipline. Written by Abby Nash on September 20, 2021. When punishments are dealt with at random, rewards are handed out on whims, and two employees receive a different reaction to the same behavior, how is one supposed to know what is expected of them? Failure to address work conflicts. Morale tanks when employees see that certain individuals receive. Failure to pay correctly. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { Documentation shows fairness, and shows jurors and judges that the managers response wasnt a knee-jerk reaction, Zandy said. Enforcement of these policies, however, might appear inconsistent, especially to workers in New Jersey who suspect that their gender, race, sexual orientation, age or ethnicity prompted managers to single them out for punishment or termination. Managers get companies sued, said Zandy, a trial lawyer with Ford & Harrison LLP who represents employers. . | Last reviewed March 26, 2008. One such protected activity is discussing working conditions, including disciplinary matters, with coworkers. Laws change in a moment. If you keep a database on a running basis, you can pull the information out and hand it over. Be ready to explain what is policy inconsistency from your perspective. Members may download one copy of our sample forms and templates for your personal use within your organization. How does my legal medical marijuana drug test affect my pre-employment and Dos and Donts of Writing a Warning Letter to an Employee, Salaried-Exempt Employees and Paid Vacation Leave. If they are not enforced, they are like tools rusting away, unused in the garage. When people understand why a rule is in place, theyre more supportive, says Hanna Hasl-Kelchner, an attorney and author of The Business Guide to Legal Literacy (John Wiley & Sons, 2006). 2. 1990)). Another source of inconsistencies stemming from outdated policies is a lack of organization, particularly when it comes to weeding out the old versions. When you develop new rules, put employees on notice.. These policies are added to your handbook, communicated to employees, and put into effect. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { To request permission for specific items, click on the reuse permissions button on the page where you find the item. It is vital that Utah employers draft clear policies that are consistently enforced. This means that every time you visit this website you will need to enable or disable cookies again. The FMLA guarantees an employee, male or female, who has been working at least a year for a company with 50 or more employees the right to job-protected, 12-week, unpaid leave to recover from a serious medical condition or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse. (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. The appeals court agreed. A reader's particular legal position is dependent upon the facts of the specific situation. The easiest way an employer can increase the consistent application of rules is to put them in writing. MEMBER EVENTS Members may download one copy of our sample forms and templates for your personal use within your organization. If you have not recently reviewed and updated your handbook, it is time to do so. Consistent enforcement would not benefit OP in any way, and so the only concern is fairness across the whole community. But juries think you should be even in your application of rules. 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. Prior to the meeting, photocopy proof of the inconsistency, as well as your notes, and provide your supervisor with a copy. It's important that supervisors' political views don't lead to inconsistent enforcement of policies. Enforce a policy for one employee, but not for anotherand guess what? This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. 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. To employers, these numbers may seem scary, but avoiding lawsuits is possible through the proper application of workplace policies. Highlight incidents that appear to be inconsistent with company policy. 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. He sued the company for race discrimination, claiming that Kohler looked the other way when his white coworkers broke the rules but enforced them against him on account of his race, as well as unlawful retaliation for complaining about discrimination. In other words, employees who commit the same misconduct or display the same performance problems should be treated in the same manner. Have employees in more than one state? When employees are treated differently from co-workers, they attempt to deduce their employers motive in doing so. Under the National Labor Relations Act (NLRA), employees have a right to engage in protected concerted activity. As a result, employees and managers were, at times, unclear about the state of the companys policies. 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. Keeping policies up to date helps ensure that the policy is doing what its supposed to protecting the company and those working for it. "Inconsistent enforcement of policies, or no enforcement of policies, is a recipe for disaster for employers regardless of the situation," she said. Typically, the issue is analyzed in terms of whether inconsistent enforcement undercuts the legitimate business interest justifying the restriction. A case of discrimination is built on unequal treatment based on race, sex, age, disability or other protected classifications, says Mark Burak, an attorney with Morse, Barnes-Brown and Pendleton in Waltham, Mass. Security enforcement management gives administrators the capability to set policies and to have them enforced remotely. One manager doesnt enforce it. Copyright 2023 by Ballard Spahr LLP. Although this seems like common sense, too many employers operate daily without even their most basic policies written down. 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. 297 Kingsbury Grade, Suite 1180 While certain details may need to be withheld, notifying the employee of the general outcome of their complaint shows you care, Zandy said. At LBMC Employment Partners, we can help with everything from developing your companys handbook to securing training for managers. HR professionals understand the need for documentation of each step in progressive discipline, but often managers dont. Ask why this policy was in place, Hasl-Kelchner recommends. Dori Meinert is a senior writer at HR Magazine. 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. These policies are added to your handbook, communicated to employees, and put into effect. In this case, the court said there was no evidence of the manner by which the employer monitored and enforced compliance with the cash-handling policy, so the employer was unable to carry its burden of proving that the employee was discharged for willful violation of the employers rules (Freeman v. District of Columbia Department of Employment Services, No. Your company will lose the court case every time. Its the manager Im always scared of. For example, your company has a dress code policy that does not allow jeans to be worn in the workplace. The attorney Maintain the original documents for your personal files. As a result, employees and managers were, at times, unclear about the state of the company's policies.". Those in charge of enforcement, she. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. If they like you, they wont sue you. SHRM article: Packaging Your Policies(HR Magazine), SHRM article: Is It Time To Revise Your Employee Handbook? It is a fundamental practice every employer should engage in for many reasons. The employer consistently enforced the rule. The Client Review Rating score is determined through the aggregation of validated responses. 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. Even so, an employer must still be careful to discipline policy violations uniformly, i.e., do not terminate someone for something you only gave a verbal warning about previously. Monitoring how policies are applied throughout the organization in disciplining employees can help HR get a better handle on which policies to keep and which to ditch. Have someone in HR be a central repository for information on how supervisors are using company policies, Johnson recommends. OP can't do anything about the inflexibly policy, so they take issue with the unfair enforcement. This is the only area of law that requires the employer to prove its managers didnt do anything wrong, Zandy said. Written policies also provide notice to employees of what to expect when they engage in the behavior covered by the written policy. Similarly, if a policy is meant to help the company meet regulatory requirements that have changed, theres little reason to keep it in effect; when the law changes and policies dont, those policies may no longer protect the company from legal repercussions. Having access to HR experts is the best way to ensure your company is enforcing its policies consistently. Wage and hour lawsuits are on the rise. Managers must impose discipline consistently. I would be happy to help. If a company wants to avoid lawsuits, discrimination, and a culture of inequity, it should avoid inconsistent enforcement of company policies at all costs. For help drafting or reviewing your company's leave policy and other documents, and for advice on whether you . temp_style.textContent = '.ms-rtestate-field > p:first-child.is-empty.d-none, .ms-rtestate-field > .fltter .is-empty.d-none, .ZWSC-cleaned.is-empty.d-none {display:block !important;}'; People think one person can act badly on their own. Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. They ensure compliance with laws and regulations, give guidance for decision-making, and streamline internal processes. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. Its complicated stuff. 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.. The plaintiff, John Reynolds, was terminated on January 6, 1998, purportedly for not clocking in at the correct time. Hexcel never put these evolutions and modifications of the rule into writing. 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. 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. Updating policies is step one, but making sure everyone has access to the most current version is just as important. 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. Interested in learning more? Before jettisoning a rule, make sure that the real problem isnt employees outdated perceptions of a policy that would be useful if it were uniformly followed. The Commission determined that Mr. Pickard had made out a. Worse, if employees have the wrong version, they could end up blindsided by a policy they thought they understood. If you mean what you say, then do what you say.. 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. Companies will tell me, He was the owner, he said he didnt do it, and that was good enough for us. How does that look to a jury? Managing the employees in your workplace effectively necessitates that even the smallest of businesses set up work rules. Find out more about ComplianceBridges Policy & Procedure Software, as well as its Risk Management Software by watching a two-minute demo.

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