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. And assuming the policies they have are legal, Companies have the right to enforce them. 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. Did you follow it? ComplianceBridge Corporation Inconsistent workplace policies can be frustrating. In other words, employees who commit the same misconduct or display the same performance problems should be treated in the same manner. We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. This evidence will go a long way in defeating a discrimination claim. Employers create internal policies to manage employee behavior and promote productivity. 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. Diane Cadrain is an attorney and writer who has been covering workplace legal issues for 20 years. Voorhees, NJ 08043, MEMBER LOGIN 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. 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. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. Inconsistent policies and disparate treatment of workers can be grounds for taking legal action against the company, according to the National Law Review. The law forbids discrimination in every aspect of employment. 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. The Department of Justice today announced criminal charges against 18 defendants in nine federal districts across the United States for their alleged participation in various fraud schemes involving health care services that exploited the COVID-19 pandemic and allegedly resulted in over $490 million in COVID-19 related false billings to federal programs and theft from federally funded pandemic . Invite debate., Track use of policies. When you roll out a new policy, do some education around it. Written policies also provide notice to employees of what to expect when they engage in the behavior covered by the written policy. Managers should also be careful when they speak to employees about discipline. Recommendations include: When formulating policies, get employee buy-in. You should then appeal the written warning thats still in your file from two years ago. HR professionals understand the need for documentation of each step in progressive discipline, but often managers dont. Enforce a policy for one employee, but not for anotherand guess what? Bad evaluations drive settlements, Zandy said. It is vital that Utah employers draft clear policies that are consistently enforced. Although this seems like common sense, too many employers operate daily without even their most basic policies written down. Please log in as a SHRM member. All Rights Reserved. People dont think that people conspire, he said. Managers must impose discipline consistently. If you mean what you say, then do what you say.. You also have the option to opt-out of these cookies. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { The email address cannot be subscribed. $("span.current-site").html("SHRM MENA "); To avoid problems, policies should be clearly documented. Once trained, management and supervisors should periodically review handbook policies to assess whether they are being applied consistently throughout the company. Written by Abby Nash on September 20, 2021. Your company will lose the court case every time. Reynolds was supposed to work from 7:00 a.m. until 3:30 p.m. A policy that is vague, evolving, or inconsistently enforced will support an employee's claim for discrimination/retaliation. Find out more about ComplianceBridge's Policy & Procedure Software, as well as its Risk Management Software by watching a two-minute demo. inconsistent-enforcement-of-company-policies. . 7. 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 . The Purpose of Company Policies It is a good business practice for employers to establish clear and reasonable policies and follow those policies consistently. At LBMC Employment Partners, we can help with everything from developing your companys handbook to securing training for managers. For instance, if an HOA fines a certain protected class but not others, they may be charged with discrimination. Currently, 32 states have proposed legislative changes to extend leave time, Zandy said. Inconsistencies. Money: Filing a Complaint with HR Can Be Scary. 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 . If you discipline an employee for taking leave to which the employee is legally entitled, you are asking for trouble. Good, compassionate employers embrace this stuff, Zandy said. Not only does inconsistent enforcement of company policies around pay damage morale, it also violates the law. Its complicated stuff. They ensure compliance with laws and regulations, give guidance for decision-making, and streamline internal processes. This makes consistency critical in the workplace. Virtual & Las Vegas | June 11-14, 2023. To Get 20% Off Memberships, employers benefit from having written policies, The Myth of the Two Weeks Notice Requirement. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. Be fair. Note that Reynolds candidly admitted that he violated Kohler's policy. They think theres a protective layer around the higher-ups, she adds. 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. When a workplace rule that should apply to everyone seems to be applied only selectively, employees feel aggrieved. } (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.). The information provided on this site is not legal "Inconsistent enforcement of policies, or no enforcement of policies, is a recipe for disaster for employers regardless of the situation," she said. Obtain copies of department-specific or job-specific policies, such as standard operating procedures, job descriptions or memoranda containing updates. Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. 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. For example, your company has a dress code policy that does not allow jeans to be worn in the workplace. 297 Kingsbury Grade, Suite 1180 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. 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. If a company wants to avoid lawsuits, discrimination, and a culture of inequity, it should avoid inconsistent enforcement of company policies at all costs. 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. 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. 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 Utah Court of Appeals affirmed, finding that the Commissions determination was supported by substantial evidence and was not clearly erroneous. Copyright 2023 MH Sub I, LLC dba Internet Brands. } It can negatively affect employee morale, lead to higher employee turnover rates, and create contention among co-workers, among other things. The employer consistently enforced the rule. To start, managers could be working off of different versions, leading to inconsistent enforcement of company policies by mistake. } Good evaluations win lawsuits. This will help management enforce policies consistently, lessening the chance of real or perceived favoritism. 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. Do you have a policy? 8. This advice applies whether you are changing a policy or adding a new one. Inconsistent enforcement also applies to rules that are in force but not applied. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. 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. Readers should contact an attorney for application of the law and regulations to their specific fact situation. Inconsistent Administration The keys to consistent and fair administration of workplace policies are training and accountability. Keeping policies up to date helps ensure that the policy is doing what its supposed to protecting the company and those working for it. And trying to do so can be expensive. SUBSCRIBE HERE! The attorney What are the different Martindale-Hubbell Peer Review Ratings?*. If your boss only enforces a rule when you break it, that could be a sign of discrimination or workplace retaliation. Be prepared to point out where policies are inconsistent, meaning one policy or action contradicts another. Dont approach your supervisor on behalf of another employee; limit your appeals to matters that concern you personally. 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;}'; Join us at SHRM23 as we drive change in the world of work with in-depth insights into all things HR. For information regarding a specific legal issue affecting you, pleasecontact an attorney in your area. Avoid legal pitfalls when you discipline employees. 2023 ComplianceBridge Corporation. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. 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. 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. According to the EEOC, the following company policies discourage retaliatory conduct: . 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). Its easy to see why a manager wouldnt enforce an antiquated, useless policy. Inconsistent enforcement of company policies can be extremely frustrating. 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. 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. 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. 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. (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. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. For small businesses, most work rules will be optional. If you see a little-used policy that you now want to dust off, she adds, educate the workforce about it. Teach them about the companys equal employment opportunity and anti-harassment policies. There are one of the first things that lawyers ask about when a lawsuit is filed. Managers must impose discipline consistently. Social and technological developments over the last decade also require employer response. 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. What Happens Now? Inconsistent enforcement opens the door for the employee's attorney to allege discrimination, Being unaware of the law. Inconsistent enforcement opens the door for the employees attorney to allege discrimination, Zandy said. 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. Members can get help with HR questions via phone, chat or email. Kohler did terminate Reynolds, but never investigated whether the white employee was doing the same thing that Reynolds was doing. 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. var currentUrl = window.location.href.toLowerCase(); Request a demo of ComplianceBridge today! However, this rule was not enforced. Not only does inconsistent enforcement of company policies negatively impact the culture, but it also opens the doors for lawsuits against the company. In addition, the exact parameters of the no-sleeping rule were not clearly established. Despite Dicksons order, many employees continued to clock in at nonstandard times. It is a fundamental practice every employer should engage in for many reasons. However, they did not question the white employee about modifying his shift; this employee also happened to be the son of the plant manager. Dori Meinert is a senior writer at HR Magazine. Moreover, Reynolds testified that three other white male employees did the same thing. Why? 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. Example - Justifying Inconsistent Treatment. 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. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Otherwise, policies will be honored more in the breach. Your session has expired. MEMBER DISCOUNTS Additionally, all managers and supervisors should receive training about policies and the importance of enforcing them fairly and consistently. She is a member of the Human Resource Association of Central Connecticut. $(document).ready(function () { Typically, the issue is analyzed in terms of whether inconsistent enforcement undercuts the legitimate business interest justifying the restriction. 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 fact, it appeared that the company instituted, retracted, enforced and ignored other such policies over the years. The EEOC's new enforcement policies demonstrate a renewed interest in prosecuting retaliation . If rules were applied consistently, this record will demonstrate that the company took the same action against similar employees who engaged in the same behavior. Members can get help with HR questions via phone, chat or email. COPYRIGHT 2003 TANNER & GUIN, LLC. Stateline, NV 89449 In this case, highlight the company policy that states disciplinary actions are removed from employees files after one year. 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. How to Dispute a Warning Letter in an Employee File, How to Get a Job Through a Company You Got Fired From. An employer offers inconsistent explanations for an adverse action - first offering one reason and then backtracking and offering a different reason. Inconsistent Enforcement of Policies By: Susan S. Hodges, Esq. 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. By clicking Accept, you consent to the use of ALL the cookies. 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. That's textbook slave-morality. You have successfully saved this page as a bookmark. Join us at SHRM23 as we drive change in the world of work with in-depth insights into all things HR. The Client Review Rating score is determined through the aggregation of validated responses. 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. 2. ORLANDO, FLA.Want to know how to avoid lawsuits against your organization? The Eighth Circuit covers South Dakota, North Dakota, Nebraska, Missouri, Minnesota, Iowa and Arkansas. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. 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. Kohler fired Reynolds later that day. Stay up-to-date with how the law affects your life. moreinfo@compliancebridge.com. For questions, contact Susan Hodges at shodges@parkermccay.com. Have employees in more than one state? It is also important to note that an increased level of transparency from Twitter about the reporting process benefits all users on the platform. Train your managers, employment law attorney Aaron Zandy, SPHR, told a packed room at his early morning session at the 2014 SHRM Annual Conference & Exposition on June 24. You should state actual company practices, not a wish list, adds Linda Johnson, a partner and chair of the employment law practice in McLane, Graf, Raulerson & Middleton, New Hampshires largest law firm. 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. Shortly thereafter, on January 6, 1998, the human resources director recommended that Reynolds be terminated. Employers should periodically take the time to train supervisors on what the policies are and why they must apply them consistently.
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