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. 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. Employers who carelessly and inconsistently apply workplace policies are more likely to have employee file employment claims against them and more likely to lose those claims.
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. Instead, consistency matters most when dealing with two similarly situated employees. 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. 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.
Moreover, being consistent does not necessarily mean that an employer must always treat similarly situated employees the same. However, before an employer decides to treat one similarly situated employee differently than another, they must be able to articulate a non-discriminatory reason for doing so. Any deviation from established rules must be the product of legitimate and justifiable exception to the established rule.
There are many reasons why employers should be concerned about inconsistently applying work rules. It can negatively affect employee morale, lead to higher employee turnover rates, and create contention among co-workers, among other things. Perhaps most significantly, however, is that it fosters an environment for discrimination lawsuits.
When employees are treated differently from co-workers, they attempt to deduce their employer’s motive in doing so. 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.). In other words, they conclude that their employer discriminated against them.
Upon reaching this conclusion, whether justified or not, the employee becomes more likely to contact an attorney or a government agency seeking help to determine if discrimination occurred. 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. 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.
The easiest way an employer can increase the consistent application of rules is to put them in writing. Although this seems like common sense, too many employers operate daily without even their most basic policies written down. However, all employers benefit from having written policies.
One way written policies help is by ensuring supervisors and managers are responding to similar situations the same way. 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.
Written policies also provide notice to employees of what to expect when they engage in the behavior covered by the written 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.
For many employers, the biggest problem with the inconsistent application of policies comes from supervisors who are either 1) unaware of what the company’s policies are or 2) aware of the policies but decide to ignore them. Employers should periodically take the time to train supervisors on what the policies are and why they must apply them consistently. This periodic reminder should help to minimize the likelihood that managers and supervisors will take inconsistent action.
Employers should document every actions taken against employees. It is a fundamental practice every employer should engage in for many reasons.
In relation to consistency, documenting actions taken against employees does two things. First, it provides a record of how similar situations were handled in the past. 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. This evidence will go a long way in defeating a discrimination claim.
Second, documenting actions taken against employees captures at the time the action is taken the employer’s rationale for inconsistently applying established policies or past practice. 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.
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.
Companies who consistently apply workplace policies to similarly situated employees are less likely to face and lose discrimination claims. 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. To help improve consistency, employers should make sure all policies are in writing, managers and supervisors are properly trained, and that all employment actions are documented, especially when an employer decides to deviate from established policies.
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. I would be happy to help.
