Legal Ease Five Must Have Workplace Policies
By Richard D. Alaniz T
oday's employers have an increasingly regulated and overly litigious landscape to navigate
in managing their workplace. The continued growth of federal, state, and even local regulatory protections for employees, coupled with an overabundance of lawyers has made virtually every workplace decision a potential lawsuit. By implementing or updating as needed, and consistently enforcing five (5) practical and well- known workplace policies, most employers can dramatically decrease the potential that a workplace decision involving an employee will result in a successful legal challenge.
1. No Harassment Policy Without an all-encompassing no harassment policy that is posted or otherwise widely disseminated, an employer will find it difficult to defend against Equal Employment Opportunity Commission or
similar state agency
discrimination charges and possible lawsuits alleging unlawful harassment. In fact, the first document requested by investigating agencies in such a case is a copy of the employer's no harassment policy. Having such a policy in place and consistently enforcing it will help provide a reasonable defense against some of the most frequent claims made in today's workplace. Lack of a policy may lend support to a prima facie case of discriminatory harassment.
1. Equal Employment Opportunity Policy
One of the most fundamental of all employment policies is the one assuring all applicants and employees that any decisions affecting them will be made without regard to race, gender, religion, national origin, age, disability, or sexual orientation, as well as any other protected status. All job advertising should and generally does include such a statement. It should also appear on
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the face of any employment application utilized. In short, equal opportunity should be second-nature for anyone in management making any decision that affects an employee. And no company is too small to have such a policy.
3. Complaint Policy and Procedure Employee problems and concerns are endemic to the workplace, irrespective of size or specific industry. Having a well-known and structured process through which employees can have their concerns fairly addressed, and hopefully resolved, will help avoid potentially more serious repercussions. Too often business owners, especially of smaller companies, rely upon the fact that they have an open door policy permitting employees to raise any concerns or complaints directly with them. Sometimes the practical effect of such a policy results in what some experts have called "hiding behind the open door". Employees are sometimes reluctant to enter the manager's office for fear of the consequences. Perhaps they will be found to be at fault. Or even if not, that nothing can be done about their problem. While the door may be open, it may not be used. If employees are provided a formal,
structured process whereby they can verbally or in writing bring an issue of concern to management, they will use it. Ideally, it should start with taking the matter to the employee's own supervisor, and escalate it up the management ranks as needed until the matter is fully addressed, Employees should also be free to raise the matter with anyone in management with whom they are comfortable. Sometimes the problem is one involving their own supervisor. Some employees may be more open in speaking to someone of their own gender. The goal of the process is to solve the problem irrespective of how the issue is brought to the attention of management. The complaint and all actions taken to address it should be
well-documented.
4. Progressive Discipline Policy Virtually all employee disciplinary actions, especially involving termination, are subject to being second-guessed by some governmental agency or lawyer. This often occurs in the context of a formal charge or complaint filed with a state or federal agency. Whether it is an agency investigation or a lawsuit, the most commonly asked questions are whether the employee was on notice of their unacceptable performance or conduct, and whether they were subjected to escalating discipline when they failed to improve. An employer's inability to demonstrate such steps through a well- publicized and consistently applied policy of progressive discipline will likely find that their action, especially a termination, will be ruled to be improper. Frequently, the penalty is reinstatement and backpay for the employee involved. The most common progressive
discipline policies are comprised of a four step process. A verbal warning escalates to a written warning, which then goes to a final warning, sometimes including a 3-day suspension. Every step in the process should be well documented. The process finally culminates in termination. It is generally a good practice to "suspend pending termination" to provide the opportunity to review the entire disciplinary record and related documentation before taking that last critical step. Consistency in applying progressive discipline is crucial. Exceptions will undermine the policy and jeopardize the action taken.
5. Absence and Tardiness Control Policy
As mundane and routine as an absence control policy sounds, it is unfortunately one of the most frequently relied upon employment policies to support a termination decision. It is also a policy that many employers, especially small
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