As we enter the 2020s, many of us have lofty goals for ourselves and our organizations. Whether it’s launching company-wide initiatives, “tweaking procedures” or revisiting marks we may have missed the previous year. As the year takes off, our laundry list can quickly be reprioritized, shuffled and some of those forgotten, nagging items can resurface as major issues. Often times this takes the form of policies or procedures that may have fallen by the way side in recent years. Perhaps it was due to a departmental restructuring, management shift or new business process. Maybe it’s continually pushed by challenges coordinating training with staff. If there are policies that exist in your workforce that haven’t been enforced consistently, it may leave you open to exposure in unemployment and other areas of risk. With the new year in full swing, this might be the best time to focus in on those back-burner policies!
In each state there are similar requirements under the law, i.e., your rules and policies must be known, followed and consistently enforced with all employees regardless of their overall job performance. Employers are not to indiscriminately pick and choose against whom they enforce policies (certainly not without repercussions). When this does happen, risks far greater than unemployment can be generated. A supervisor simply cannot play favorites and selectively apply policies based on their opinion of the worthiness of the employee involved.
As many human resource professionals know, these scenarios frequently occur without their knowledge, when supervisors don’t report events to their manager or human resources. These supervisors may view their employees as their management “territory” and prefer not to be held accountable to organizational standards. Unless reported, the HR department would not know what is going on in that particular department. This can come back to haunt the employer. It does not matter what type of performer the employee is in the workplace, the policies must be enforced equally.
These situations can arise intentionally or inadvertently, i.e., when a new supervisor is simply inexperienced and does not apply policies correctly, or at all. This can go on for months or years, when more senior management does not detect the oversights. In other instances, refusing to formally address policy violations or misconduct may even be a corporate culture issue and method for the employer.
This also happens more frequently with multi-location employers, where oversight may be more difficult and decentralized. As such, these issues in the workplace commonly “snowball” where management believes they are trapped by past practices and unable to address recurring issues, or emerging issues, due to lack of precedence and a history of permissive or inconsistent practices. Unfortunately, this situation can be self-perpetuating costing the employer far more in unemployment costs and generating risks related to disparate treatment or wrongful discharge litigation.
So, these questions arise:
- How does an employer correct their previous mistakes or prior inaction?
- Can they?
- Should they?
- Are they stuck in this perpetual cycle?
Most employers recognize their past indiscretions and want to improve their management practices. In these situations, the best way to proceed is really to start from square one:
- Designate a “reset” that begins with the re-issue (or perhaps first issue) of a well written, and updated employee handbook, code of conduct, rules, etc.
- Poorly written policies can be deleted and replaced with strong, legally appropriate and clear standards.
- Then, all employees must acknowledge their receipt of the new handbook, whether it is distributed via hard copy or over an internal intranet.
What does this mean for the employer?
The burden is on the employer to establish employees were made aware of the organization’s expectations. The re-issue should be accompanied by some type of memorandum stating this is the new, updated handbook, superseding all prior policies and from this point forward our organization will be strictly adhering to the specifics outlined in the handbook.
The handbook, or rules of conduct release date would be the formal reset date for the organization. Employers are not to announce this “reset” status, new period or use such terminology. All that is required is the new or updated rules or policies and the statement as noted above.
Employers want to make sure their language does not admit or acknowledge you have not uniformly enforced your policies in the past. Most importantly, the emphasis must focus on the future, the employer is now required to comply with their own written guidelines and policies, or they will revert back to the same position of disparate and careless application of rules and standards.
In terms of unemployment, management witnesses can now truthfully testify at a future UI hearing: “As of the policy issue date, this rule has been strictly enforced and uniformly adhered to.” This places the employer in a strong position to contest invalid claims and protect them from risks far beyond the unemployment arena.
Is that dormant policy giving you heartburn or has it resulted in UI charges? Let’s cross another thing off your to-do-list!