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. Your handbook shouldnt contain anything by which the company doesnt intend to abide.. It's important that supervisors' political views don't lead to inconsistent enforcement of policies. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. This evidence will go a long way in defeating a discrimination claim. When you develop new rules, put employees on notice.. State Laws Federal Laws Topics Articles Resources. var temp_style = document.createElement('style'); One manager doesnt enforce it. Members may download one copy of our sample forms and templates for your personal use within your organization. When you roll out a new policy, do some education around it. Politics in the Workplace: Employer and Employee Rights +1 (408) 689-8205 . We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. The Perils Of Inconsistency - ELH / HR4Sight - Employment Law Handbook To Get 20% Off Memberships, employers benefit from having written policies, The Myth of the Two Weeks Notice Requirement. Can I File a Claim If My Employer Doesn't Follow Policies? The court found the fact that Kohler disciplined Reynolds disproportionately to other employees who violated company policies, such as failing to have their foreperson sign their time cards or clocking in and out at odd hours, supported the conclusion that Reynolds' termination for violating Kohler's clock-in policies was a pretext for retaliating against him. 9. Managers need to be trained on the ins and outs of these critical employment laws. The Eighth Circuit covers South Dakota, North Dakota, Nebraska, Missouri, Minnesota, Iowa and Arkansas. (b) If the contracting agency provides written objections, those objections . 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. After the injury, his doctor recommended that he not stand, sit, or walk for extended periods. Strictly Necessary Cookie should be enabled at all times so that we can save your preferences for cookie settings. 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. Shortly thereafter, on January 6, 1998, the human resources director recommended that Reynolds be terminated. Support your claims with side-by-side comparison of the the company policies that appear confusing, contradictory and inconsistent. 3. Join us at SHRM23 as we drive change in the world of work with in-depth insights into all things HR. Now, imagine the employee who was sent home is part of a protected class? Inconsistent Enforcement of Company Policies. Prohibited Employment Policies/Practices | U.S. Equal Employment Your session has expired. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. Failure to apply policies consistently. 220 Laurel Road, Suite 203 But the employee said that he frequently didnt follow the policy and that his immediate supervisor acquiesced in his violations. 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. Best Practices for Employee Discipline & Termination - G&A Partners Copyright 2023, Thomson Reuters. Typically, the issue is analyzed in terms of whether inconsistent enforcement undercuts the legitimate business interest justifying the restriction. 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. A manager of a Burger King outlet was fired for misconduct when he failed to make a bank deposit in accordance with company rules. When a workplace rule that should apply to everyone seems to be applied only selectively, employees feel aggrieved. 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 is the only area of law that requires the employer to prove its managers didnt do anything wrong, Zandy said. Interested in learning more? If you disable this cookie, we will not be able to save your preferences. Contact us. Under the National Labor Relations Act (NLRA), employees have a right to engage in protected concerted activity. That's textbook slave-morality. Other workers were told that they could nap anywhere, as long as they were on a break. Having multiple variations of the same policy floating around can lead to all sorts of issues. Employers should document every actions taken against employees. Reynolds did not provide the names of those employees, and the human resources director did not investigate his allegations. ake 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. 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. 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. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. The EEOC argued on appeal that the proximity of Reynolds' complaint of discrimination in relation to his termination coupled with Kohler's inconsistent enforcement of its policies and use of disciplinary actions established facts from which a jury could have drawn the conclusion that Kohler retaliated against Reynolds. Ruth resides in the nation's capital, Washington, D.C. How to Write a Letter Complaining About an Unfair Workplace. Laws change in a moment. 63% of organizations say their policy management program helps reduce legal costs and resolution time of regulatory issues and fines. Your session has expired. 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. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. 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? Document instances of what you believe are inconsistent workplace policies. Compliance One of the major issues with inconsistent policy and procedure documentation is the compliance risk it creates. View More. 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. $("span.current-site").html("SHRM China "); Obtain any revised copies of the employee handbook that were disseminated to employees after you received your first copy. In this case, highlight the company policy that states disciplinary actions are removed from employees files after one year. Maintain the original documents for your personal files. 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. ago 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. According to the Equal Employment Opportunity Commission, there were 50 percent more sexual harassment lawsuits filed in 2018 than the previous year, and other types of discrimination suits related to unequal pay and treatment are also on the rise. Employers cannot prohibit their workers from revealing that they have been disciplined. Its the manager Im always scared of. A policy that made sense to add at one point may lurk around long after it has stopped serving a business purpose. 2023 ComplianceBridge Corporation. 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. 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. Your company develops policies as a way mitigate risk and ensure operational excellence. SHRM article: Packaging Your Policies(HR Magazine), SHRM article: Is It Time To Revise Your Employee Handbook? 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. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { 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. Any deviation from established rules must be the product of legitimate and justifiable exception to the established rule. Be prepared to point out where policies are inconsistent, meaning one policy or action contradicts another. Reynolds was supposed to work from 7:00 a.m. until 3:30 p.m. Top 10 Mistakes to Avoid with Employee Handbooks - SHRM 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. Because you have a policy but you are not following it. Many employers implement processes for employees to voice their concerns about the workplace. While certain details may need to be withheld, notifying the employee of the general outcome of their complaint shows you care, Zandy said. 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. Explain that you noticed some informal policies or practices that appear to be inconsistent with the companys written policies and that youd like to review them to ensure youre aware of current policies or policy changes. Does your employer only enforce certain rules if you break them? SHRM's HR Knowledge Advisors offer guidance and resources to assist members with their HR inquiries. Your company develops policies as a way mitigate risk and ensure operational excellence. 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. Employee discipline coaching, verbal and written warnings, and so on is one of the most effective tools to improve employee performance and protect your company from liability. 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. If you have not recently reviewed and updated your handbook, it is time to do so. All Rights Reserved. Failure to manage in person. 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. AV Preeminent: The highest peer rating standard. Currently, 32 states have proposed legislative changes to extend leave time, Zandy said. Review the employee handbook provided to you when you began working for the company. If they like you, they wont sue you. Facebook's Uneven Enforcement of Hate Speech Rules - ProPublica If you disable this cookie, we will not be able to save your preferences. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { (No claim to original U.S. government material.). 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. Failure to address work conflicts. 2003)). 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. 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. 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 . 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. Train supervisors. Documentation shows fairness, and shows jurors and judges that the managers response wasnt a knee-jerk reaction, Zandy said. 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. The plaintiff, John Reynolds, was terminated on January 6, 1998, purportedly for not clocking in at the correct time. You do not base employment decisions on race, color, religion, sex (including pregnancy, sexual orientation, or gender . Your companys discipline policy should explicitly state that employees work at will and may be fired at any time, for any legal reason. When Kohler confronted Reynolds about these infractions, he said that he was being singled out because he was black. Be fair. 6. Comparing Platform Hate Speech Policies: Reddit's Inevitable Evolution The employee conceded that he hadnt followed the prescribed procedure for making the deposit. Stay up-to-date with how the law affects your life. If your boss only enforces a rule when you break it, that could be a sign of discrimination or workplace retaliation. 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. If a company wants to avoid lawsuits, discrimination, and a culture of inequity, it should avoid inconsistent enforcement of company policies at all costs. When an HOA enforces rules inconsistently, it may be held liable for violating the Fair Housing Act (FHA). This article covers a few ways to address inconsistency in your organization and prevent unwanted lawsuits. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. Employer Policies - Workplace Fairness The Commission awarded damages for lost wages, out-of-pocket medical expenses, and the amount of withdrawals Mr. Pickard had made from his savings and 401(k) accounts to cover living expenses during the time he was unemployed. Despite Dicksons order, many employees continued to clock in at nonstandard times. One way written policies help is by ensuring supervisors and managers are responding to similar situations the same way. But keep it only for the purpose of getting legal advice so its protected by the attorney-client privilege and it wont be discoverable in an employee lawsuit., He adds, Its common, in a discrimination lawsuit, for an employees lawyer to ask to see information on, for example, all the employees terminated in the last two years. Wage and hour lawsuits are on the rise. } 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. Workplace Rules For Business Owners & Employees - Wolters Kluwer Lawyers from our extensive network are ready to answer your question. However, they did not question the white employee about modifying his shift; this employee also happened to be the son of the plant manager. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { 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. They think theres a protective layer around the higher-ups, she adds. 89-362 (D.C. Cir. Managing the employees in your workplace effectively necessitates that even the smallest of businesses set up work rules. This will help management enforce policies consistently, lessening the chance of real or perceived favoritism. If you need to terminate an employee, diversify the risk by getting a second person involved in the decision, he advised. This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. Enforce Rules Consistently Favoritism often rears its ugly head in the inconsistent enforcement of company policies and rules. . But, what if your company doesnt enforce these policies? Im never quite sure what theyre going to say.. An employee handbook may include common workplace policies like a business's office hours, details regarding earning and using vacation or other paid time off, acceptable attire, and standards on technology use. Ways to Address Inconsistent Application of Workplace Policies Supplemental Terms. National Law Review: Does Inconsistency Always Kill the Cat? 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. 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. 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. 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;}'; 297 Kingsbury Grade, Suite 1180 A reader's particular legal position is dependent upon the facts of the specific situation. Teach them about the companys equal employment opportunity and anti-harassment policies. Applying Policies Inconsistently. This article was edited and reviewed by FindLaw Attorney Writers At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Don't Let Dormant Policies Lie - SHRM These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. Failure to administer leave. The content of the responses is entirely from reviewers. 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. There are many reasons why employers should be concerned about inconsistently applying work rules. You can include issues related to an inconsistent person in a supervisory role. HR professionals dont get companies sued. Sometimes supervisors will say, That rule is only a guideline or I thought I should show some leniency toward a longtime employee, Bogas says. Its easy to see why a manager wouldnt enforce an antiquated, useless policy. Make sure supervisors know why policies are there, and that you expect consistent enforcement. Inconsistent policies and disparate treatment of workers can be grounds for taking legal action against the company, according to the National Law Review. What if your company inconsistently enforces these policies? 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. var currentUrl = window.location.href.toLowerCase(); Please enable scripts and reload this page. 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 . When presented with the fact that another employee was treated differently, the attorney or government agency is more likely to spring into action, because different treatment is the hallmark of discrimination. 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? 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. But sometimes policies outstay their welcome. Members may download one copy of our sample forms and templates for your personal use within your organization. In other words, they conclude that their employer discriminated against them. Inconsistent enforcement of company policies can be extremely frustrating. 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.". Inconsistent Enforcement of Policies By: Susan S. Hodges, Esq. Urge managers to call HR, the professional conflict-resolvers, because unhappy employees sue.. 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;}'; 297 Kingsbury Grade, Suite 1180 Not only does inconsistent enforcement of company policies negatively impact the culture, but it also opens the doors for lawsuits against the company. (Legal Report), SHRM white paper: Preparation of the Employee Handbook. moreinfo@compliancebridge.com. As a result, employees and managers were, at times, unclear about the state of the companys policies. Where Policy Stops and Enforcement Begins ETHIX360 Kohler did terminate Reynolds, but never investigated whether the white employee was doing the same thing that Reynolds was doing.

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