If the company varies how they handle compensation unfairly, they could be at risk. Be consistent. In other words, employees who commit the same misconduct or display the same performance problems should be treated in the same manner. SHRM article: Packaging Your Policies(HR Magazine), SHRM article: Is It Time To Revise Your Employee Handbook? Having access to HR experts is the best way to ensure your company is enforcing its policies consistently. 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. Enforce a policy for one employee, but not for anotherand guess what? MEMBER DISCOUNTS 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. Keep a copy of your employee handbook handy and document any departures from the written policies so you have proof of inconsistencies that you can illustrate to your supervisor or to the human resources department. 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. Members may download one copy of our sample forms and templates for your personal use within your organization. This website uses cookies so that we can provide you with the best user experience possible. 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. To start, managers could be working off of different versions, leading to inconsistent enforcement of company policies by mistake. Example - Justifying Inconsistent Treatment. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. 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. Your companys discipline policy should explicitly state that employees work at will and may be fired at any time, for any legal reason. According to the EEOC, the following company policies discourage retaliatory conduct: . Trainings on policies are a great way to ensure managers are aware of every relevant policy, understand them, and are on the same page regarding how to deal with them. State Laws Federal Laws Topics Articles Resources. Your company develops policies as a way mitigate risk and ensure operational excellence. All rights reserved. While the board's willingness to depart from its corporate creator's views is noteworthy, the bigger message is that Facebook's content-moderation rules and its enforcement of them are a mess and the company needs to clean . If your company disciplines employees for absences (as most do), make sure you are not inadvertently punishing employees for exercising their legal rights. For instance, if an HOA fines a certain protected class but not others, they may be charged with discrimination. These policies are essential for a company to thrive; not only does a focus on DE&I foster a safe working environment (which should be reason enough), but diverse workplaces also have proven benefits from a business perspective. 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. Its much easier that way than developing the information from scratch., Review your employee handbook. The court modified the damages award, however. Inconsistent policies and disparate treatment of workers can be grounds for taking legal action against the company, according to the National Law Review. Not only does inconsistent enforcement of company policies around pay damage morale, it also violates the law. More lawsuits are being filed alleging technical violations of the federal Family and Medical Leave Act. Other workers were told that they could nap anywhere, as long as they were on a break. 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. Happy employees dont sue.. 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. 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. Need help with a specific HR issue like coronavirus or FLSA? Managers must impose discipline consistently. During the six years of his employment, company attendance policies and practices changed several times. Chamber of Commerce Southern New Jersey Managers get companies sued, said Zandy, a trial lawyer with Ford & Harrison LLP who represents employers. The EEOC's new enforcement policies demonstrate a renewed interest in prosecuting retaliation . Dont permit them to play favorites. However, the court concluded that Kohler "instituted, retracted, enforced, and ignored other such policies over the years. What are the different Martindale-Hubbell Peer Review Ratings?*. Social and technological developments over the last decade also require employer response. 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. 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. 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. 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. As part of the review process, respondents must affirm that they have had an initial consultation, are currently a client or have been a client of the lawyer or law firm identified, although Martindale-Hubbell cannot confirm the lawyer/client relationship as it is often confidential. var currentUrl = window.location.href.toLowerCase();
This means that every time you visit this website you will need to enable or disable cookies again. Inconsistent enforcement of company policies can be extremely frustrating. Even after this, Hexcels enforcement of the no-sleeping rule was inconsistent. Find out more about ComplianceBridges Policy & Procedure Software, as well as its Risk Management Software by watching a two-minute demo. The Equal Employment Opportunity Commission (EEOC) took Reynolds cause all the way to the 8th U.S. While certain details may need to be withheld, notifying the employee of the general outcome of their complaint shows you care, Zandy said. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. The Eighth Circuit covers South Dakota, North Dakota, Nebraska, Missouri, Minnesota, Iowa and Arkansas. This article has been written and reviewed for legal accuracy, clarity, and style byFindLaws team of legal writers and attorneysand in accordance withour editorial standards. 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. For example, assume your handbook says employees disciplinary actions will be removed from their employment files one year after the date of the incident. 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. 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. 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. 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. Mention the date, subject matter, the applicable policy, employees involved and additional details concerning application of company policy. 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. 297 Kingsbury Grade, Suite 1180 . Watch Demo Now. To employers, these numbers may seem scary, but avoiding lawsuits is possible through the proper application of workplace policies. Bad evaluations drive settlements, Zandy said. Discuss any incidents that you witnessed of inconsistency and not events you learned about through secondhand information. Have employees in more than one state? Obtain copies of department-specific or job-specific policies, such as standard operating procedures, job descriptions or memoranda containing updates. 63% of organizations say their policy management program helps reduce legal costs and resolution time of regulatory issues and fines. Failure to apply policies consistently. 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. 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. 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. 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. In addition, the exact parameters of the no-sleeping rule were not clearly established. Your company will lose the court case every time. (Legal Report), SHRM white paper: Preparation of the Employee Handbook. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. And trying to do so can be expensive. Keeping policies up to date helps ensure that the policy is doing what its supposed to protecting the company and those working for it. In December 1997 Kohler's human resources director met with Reynolds to discuss his clocking in and out early. 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. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organizations culture, industry, and practices. +1 (408) 689-8205 Typically, the manager at the center of an employees lawsuit is a bad manager who has been tolerated far too long, or a new manager who hasnt received adequate training, Zandy said. Despite Dicksons order, many employees continued to clock in at nonstandard times. If you disable this cookie, we will not be able to save your preferences. +1 (408) 689-8205 It can negatively affect employee morale, lead to higher employee turnover rates, and create contention among co-workers, among other things. The plaintiff, John Reynolds, was terminated on January 6, 1998, purportedly for not clocking in at the correct time. During the six years of his employment, company attendance policies and practices changed several times. confidential relationship is or should be formed by use of the site. COPYRIGHT 2003 TANNER & GUIN, LLC. Work with a proactive attorney to review your handbook every two years or so, Johnson recommends. Now, imagine the employee who was sent home is part of a protected class? This is the only area of law that requires the employer to prove its managers didnt do anything wrong, Zandy said. Moreover, employers generally can't assure their employees that disciplinary matters will remain confidential. This means that every time you visit this website you will need to enable or disable cookies again. Do Not Sell or Share My Personal Information. Having good policies, and enforcing those policies, promotes efficiency and high morale among employees. Some employees violated the rule, but were not terminatedor even disciplinedfor their infractions. Good evaluations win lawsuits. 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. 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. To Get 20% Off Memberships, employers benefit from having written policies, The Myth of the Two Weeks Notice Requirement. Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. 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. Some devices lose their setting if the battery dies. Give managers just enough information so they know when to contact the HR team, which has a detailed knowledge of leave laws. Core use cases Data discovery & classification Compliance management Least privilege automation Ransomware prevention This evidence will go a long way in defeating a discrimination claim. Policies are an essential component of any organization. When an HOA enforces rules inconsistently, it may be held liable for violating the Fair Housing Act (FHA). Long before Mr. Pickards accommodation request, Hexcel had instituted a rule against sleeping on the job. Keeping policies updated ensures that they are still relevant. These policies are added to your handbook, communicated to employees, and put into effect. Avoid legal pitfalls when you discipline employees. Highlight incidents that appear to be inconsistent with company policy. 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. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. What Are the Benefits and Risks of Employment Contracts? But that rule, too, was enforced off and on. Policies and procedures are an essential part of any organization. This will help management enforce policies consistently, lessening the chance of real or perceived favoritism. Your session has expired. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. All Rights Reserved. 2023 ComplianceBridge Corporation. There are one of the first things that lawyers ask about when a lawsuit is filed. Employees just want to be loved. 4. 6. Additionally, all managers and supervisors should receive training about policies and the importance of enforcing them fairly and consistently. Get the latest significant legal alerts, news, webinars, and insights that affect your industry. 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. That's textbook slave-morality. 297 Kingsbury Grade, Suite 1180 Don't put it off. You also have the option to opt-out of these cookies. 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. This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. Lawyers who have received peer reviews after 2009 will display more detailed information, including practice areas, summary ratings, detailed numeric ratings and written feedback (if available). When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. 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. Another source of inconsistencies stemming from outdated policies is a lack of organization, particularly when it comes to weeding out the old versions. But the employee said that he frequently didnt follow the policy and that his immediate supervisor acquiesced in his violations. Lawyers from our extensive network are ready to answer your question. 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. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. Do you have a policy? Sample 1 Sample 2 Sample 3 See All ( 176) Remove Advertising. One commissioner dissented, arguing that the statement failed to sufficiently constrain the scope of the unfair methods of competition.But the statement was largely consistent with a "broad consensus" (as noted in the 2014 article referenced above) that unfair methods include only conduct that "harms or is likely to . Shortly thereafter, on January 6, 1998, the human resources director recommended that Reynolds be terminated. $(document).ready(function () {
It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. Moreover, being consistent does not necessarily mean that an employer must always treat similarly situated employees the same. However, this rule was not enforced. Employers create internal policies to manage employee behavior and promote productivity. 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. Employers should document every actions taken against employees. 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). Failure to address work conflicts. Stateline, NV 89449 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. 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. 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. Did you follow it? Ask what problem it addressed and whether it solved the problem. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Having multiple variations of the same policy floating around can lead to all sorts of issues. For example, employers could have to reveal disciplinary actions as a result of a subpoena or during the discovery process in a lawsuit. Your policies tell both the company and its employees what is expected of them and what procedures will be followed when policies are violated. 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. For small businesses, most work rules will be optional. Windows & NAS Monitor and protect your file shares and hybrid NAS. Take the case of John Reynolds, a black employee of plumbing manufacturer Kohler in its Searcy, Ark., plant who was fired for violating company attendance rules. Copyright 2023, Thomson Reuters. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. At the end of the day, treating people with respect, compassion and understanding, and really listening and embracing the whole process, understanding that people truly are our most important asset thats what avoids liability.. }
The court reversed the denial of benefits, noting that to successfully deny benefits to employees who have been fired for violation of a company rule, the employer has to show:. Fortunately, there are several steps employers can take to ensure that employee policies are communicated, understood and followed. Please log in as a SHRM member. 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;}';
Under the National Labor Relations Act (NLRA), employees have a right to engage in protected concerted activity. One manager doesnt enforce it. A policy that is vague, evolving, or inconsistently enforced will support an employee's claim for discrimination/retaliation. Inconsistent policies and disparate treatment of workers can be grounds for taking legal action against the company, according to the National Law Review. Can a Union Employee File a Charge of Wrongful Termination? You have successfully saved this page as a bookmark. In other words, they conclude that their employer discriminated against them. All Rights Reserved. Review the employee handbook provided to you when you began working for the company. Employers should periodically take the time to train supervisors on what the policies are and why they must apply them consistently. 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. 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. A policy that is vague, evolving, or inconsistently enforced will support an employees claim for discrimination/retaliation. Distinguished: An excellent rating for a lawyer with some experience. Does Your Employee Handbook Compromise At-Will Employment? Reynolds did not provide the names of those employees, and the human resources director did not investigate his allegations. This article covers a few ways to address inconsistency in your organization and prevent unwanted lawsuits. As the Court noted, "Kohler's lax enforcement of company policies and employee discipline, however, undermines its reasons for Reynolds discipline and termination.". Michael Pickard had worked as a maintenance electrician. 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. Her work appears in "The Multi-Generational Workforce in the Health Care Industry," and she has been cited in numerous publications, including journals and textbooks that focus on human resources management practices. Documentation shows fairness, and shows jurors and judges that the managers response wasnt a knee-jerk reaction, Zandy said. Support your claims with side-by-side comparison of the the company policies that appear confusing, contradictory and inconsistent. In other words, employees who commit the same misconduct or display the same performance problems should be treated in the same manner. 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. Tax Season Special! 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. In this electronic age, many managers dont recognize the importance of face-to-face communication or the need to show appreciation. 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. Please enable scripts and reload this page. 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. Perhaps most significantly, however, is that it fosters an environment for discrimination lawsuits. ORLANDO, FLA.Want to know how to avoid lawsuits against your organization? For questions, contact Susan Hodges at shodges@parkermccay.com. There are many reasons why employers should be concerned about inconsistently applying work rules. However, all employers benefit from having written policies. Even worse, it appears that you chose to selectively apply it to an employee who is part of a protected class. They ensure compliance with laws and regulations, give guidance for decision-making, and streamline internal processes. Employment Lawyer: I Was Fired and My Employer Won't Give Me My Final Paycheck: What Should I Do? This website uses cookies so that we can provide you with the best user experience possible. When managers dont get performance evaluations done on time or dont carefully consider what they write, employees get upset and feel unappreciated, he said. Sounds like trouble and a potential lawsuit. 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. Further assume that you received a written warning for tardiness two years ago, and that you recently received a warning from your supervisor that indicates a warning for being tardy last week will compound the one thats already in your file. By clicking Accept, you consent to the use of ALL the cookies. 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. ago Suppose the company has a sexual harassment policy setting out procedures it will follow when an employee brings a complaint. Request a demo of ComplianceBridge today! 3. 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..
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