In this case, highlight the company policy that states disciplinary actions are removed from employees files after one year. This website uses cookies so that we can provide you with the best user experience possible. Need help with a specific HR issue like coronavirus or FLSA? Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. (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 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. Be fair. If your company disciplines employees for absences (as most do), make sure you are not inadvertently punishing employees for exercising their legal rights. $("span.current-site").html("SHRM MENA "); Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. Thats because realworld practice often ends up trumping languishing handbook policies in court. 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. 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. +1 (408) 689-8205 You should endeavor to address misconduct as soon as possible. } Prior to the meeting, photocopy proof of the inconsistency, as well as your notes, and provide your supervisor with a copy. I would be happy to help. 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. Readers should contact an attorney for application of the law and regulations to their specific fact situation. 1990)). 16 Sheharizadian 8 mo. +1 (800) 317-2820 Inconsistent enforcement of company policies can be extremely frustrating. 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. 3. One way to do this is to keep detailed records of policy enforcement. For questions, contact Susan Hodges at shodges@parkermccay.com. These policies are added to your handbook, communicated to employees, and put into effect. State Laws Federal Laws Topics Articles Resources. 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. Employers should document every actions taken against employees. 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. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. But if the accused is a higher-level person, they dont follow it, she posits. 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.. Your session has expired. If your boss only enforces a rule when you break it, that could be a sign of discrimination or workplace retaliation. Join us at SHRM23 as we drive change in the world of work with in-depth insights into all things HR. Employers cannot prohibit their workers from revealing that they have been disciplined. } 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.. Mr. Pickard requested that Hexcel accommodate his injury by allowing him to work eight-hour shifts, instead of his normal 12- hour shift. However, all employers benefit from having written policies. In December 1997 Kohler's human resources director met with Reynolds to discuss his clocking in and out early. Another source of inconsistencies stemming from outdated policies is a lack of organization, particularly when it comes to weeding out the old versions. 89-362 (D.C. Cir. Some employees violated the rule, but were not terminatedor even disciplinedfor their infractions. HR professionals dont get companies sued. 220 Laurel Road, Suite 203 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.. 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. 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;}'; 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. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. A policy that is vague, evolving, or inconsistently enforced will support an employee's claim for discrimination/retaliation. 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 . The easiest way an employer can increase the consistent application of rules is to put them in writing. What Happens Now? 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. 297 Kingsbury Grade, Suite 1180 Good, compassionate employers embrace this stuff, Zandy said. One manager doesnt enforce it. During the six years of his employment, company attendance policies and practices changed several times. Money: Filing a Complaint with HR Can Be Scary. Here are a few basic principles that will help your company stay out of legal trouble. Get the latest significant legal alerts, news, webinars, and insights that affect your industry. var temp_style = document.createElement('style'); 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. FindLaws team of legal writers and attorneys, Employers Must Enforce Policies Uniformly. Example - Justifying Inconsistent Treatment. Find out more about ComplianceBridges Policy & Procedure Software, as well as its Risk Management Software by watching a two-minute demo. 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. In the recent decision in Hexcel Corp. v. Lab Commission, the Utah Court of Appeals affirmed a decision by the Utah Labor Commission that Hexcel was liable for discrimination and/or retaliation when it fired an employee because of his disability and related request for accommodation. 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:. They think theres a protective layer around the higher-ups, she adds. Copyright 2023, Thomson Reuters. For help drafting or reviewing your companys leave policy and other documents, and for advice on whether you should fire an employee who reaches the end of your disciplinary steps, talk to an experienced employment lawyer. Inconsistent enforcement opens the door for the employee's attorney to . Support your claims with side-by-side comparison of the the company policies that appear confusing, contradictory and inconsistent. OP can't do anything about the inflexibly policy, so they take issue with the unfair enforcement. The Utah Court of Appeals affirmed, finding that the Commissions determination was supported by substantial evidence and was not clearly erroneous. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { 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. Managers should also be careful when they speak to employees about discipline. And trying to do so can be expensive. 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. Moreover, being consistent does not necessarily mean that an employer must always treat similarly situated employees the same. Any deviation from established rules must be the product of legitimate and justifiable exception to the established rule. The information provided on this site is not legal Company policies that are not clearly written and consistently enforced will support a claim for discrimination/retaliation in Utah state courts, as the plaintiff can argue that the employers justification for termination is mere pretext. It can negatively affect employee morale, lead to higher employee turnover rates, and create contention among co-workers, among other things. View More. 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. COPYRIGHT 2003 TANNER & GUIN, LLC. Documentation shows fairness, and shows jurors and judges that the managers response wasnt a knee-jerk reaction, Zandy said. 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. Employers should periodically take the time to train supervisors on what the policies are and why they must apply them consistently. This advice applies whether you are changing a policy or adding a new one. It's important that supervisors' political views don't lead to inconsistent enforcement of policies. Although this seems like common sense, too many employers operate daily without even their most basic policies written down. Here's the Best Way to Do It, HR Steps to Take If an Employee Appeals Termination, How to Investigate a Claim of Racial Discrimination in the Workplace, How to Write an Appeal Letter Against a Grievance at Work. Copyright 2023 MH Sub I, LLC dba Internet Brands. 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. Written by Abby Nash on September 20, 2021. Inconsistent Enforcement of Company Policies. (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.). A reader's particular legal position is dependent upon the facts of the specific situation. Members may download one copy of our sample forms and templates for your personal use within your organization. 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. AV Preeminent: The highest peer rating standard. Your session has expired. One way written policies help is by ensuring supervisors and managers are responding to similar situations the same way. 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. $('.container-footer').first().hide(); Reasons for policy failure include the absence of these two. Maintain the original documents for your personal files. Accordingly, those policies will also require additional trainings. 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. (Legal Report), SHRM white paper: Preparation of the Employee Handbook. $("span.current-site").html("SHRM China "); listings on the site are paid attorney advertisements. When I say that an employer should not be inconsistent when applying work rules, I do not mean that the employer must treat all employees exactly the same all the time. But sometimes policies outstay their welcome. Failure to treat employees with dignity and respect. When you roll out a new policy, do some education around it. 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.). Enforce a policy for one employee, but not for anotherand guess what? 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. Employment Lawyer: Reduction-In-Force or Layoff: What Difference Does it Make? Then have HR evaluate the information once or twice a year to see whether the rules are being enforced equally., Burak suggests taking Johnsons advice one step further. To start, managers could be working off of different versions, leading to inconsistent enforcement of company policies by mistake. 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. Failure to apply policies consistently. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. Dont permit them to play favorites. Mention the date, subject matter, the applicable policy, employees involved and additional details concerning application of company policy. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. There are one of the first things that lawyers ask about when a lawsuit is filed. This means that every time you visit this website you will need to enable or disable cookies again. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. It makes sense that HR consult with a lawyer on these changes, or get some legal education, Bogas says. Inconsistent workplace policies can be frustrating. This website uses cookies to improve your experience while you navigate through the website. The employer denied the request because it was short-staffed, so Mr. Pickard resumed his normal work schedule. 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. 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. Social and technological developments over the last decade also require employer response. Managing the employees in your workplace effectively necessitates that even the smallest of businesses set up work rules. 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. An employer offers inconsistent explanations for an adverse action - first offering one reason and then backtracking and offering a different reason. . Employment Lawyer: I Was Fired and My Employer Won't Give Me My Final Paycheck: What Should I Do? Frequently, managers and HR professionals believewronglythat the results are confidential. If you disable this cookie, we will not be able to save your preferences. With the rise of the #MeToo movement and growing awareness around discrimination, employers who fail to enforce proper workplace conduct are at more risk than ever before. 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. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { If managers play favorites or come down harder on some employees than others, it could result in a discrimination claim against your company by an employee who feels that a protected characteristic, such as race or disability, played a role in the managers decision. What if your company inconsistently enforces these policies? Can I Legally Decline Signing a Performance Appraisal. Its complicated stuff. And while that may not be the reason (often it is not), it is the employers burden to prove otherwise. Counsel and Chair, Employment and Labor Department, Parker McCay P.A. Only 27% of CCOs believe the compliance function has a change management process in place to identify changes in laws and regulations and to incorporate those changes into their policies. This is the only area of law that requires the employer to prove its managers didnt do anything wrong, Zandy said. This means that the extra time and effort it takes to ensure consistent application of rule can help the company save time and money in the long run. Once trained, management and supervisors should periodically review handbook policies to assess whether they are being applied consistently throughout the company. 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. 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. Failure to train managers. 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. Members can get help with HR questions via phone, chat or email. However, they did not question the white employee about modifying his shift; this employee also happened to be the son of the plant manager. All Rights Reserved. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); 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. 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. For instance, if an HOA fines a certain protected class but not others, they may be charged with discrimination. 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. Communicate changes effectively. 2023 ComplianceBridge Corporation. Martindale-Hubbell validates that a reviewer is a person with a valid email address. Additionally, all managers and supervisors should receive training about policies and the importance of enforcing them fairly and consistently. Virtual & Las Vegas | June 11-14, 2023. Sample 1 Sample 2 Sample 3 See All ( 176) Remove Advertising. Please purchase a SHRM membership before saving bookmarks. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. If a company is still supposedly following its dress code from the 1950s, you better believe no one is enforcing it. But that rule, too, was enforced off and on. 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. Learn more about FindLaws newsletters, including our terms of use and privacy policy. 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. Strictly Necessary Cookie should be enabled at all times so that we can save your preferences for cookie settings. 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. For example, your company has a dress code policy that does not allow jeans to be worn in the workplace.
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