|
HR MATTERS E-TIPS
August 14, 2007, Volume 9, No. 33
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
THIS WEEK'S E-TIP: Legal Guidelines for Fair and Consistent
Discipline
When disciplining employees, do you think you have to treat everyone
exactly the same? Most employers are concerned they will be sued for
discrimination if they do not. Court cases show, however, that
consistency does not necessarily mean achieving the same outcome for
all employees. |
|
|
|
^^^^^^^^^^^^^^^^^^^^^^^^^ Recommended Resource
^^^^^^^^^^^^^ |
|
Employment
Practices Self-Audit Workbook
From M. Lee Smith Publishers LLC
Don't wait for government agency
watchdogs and disgruntled employees
to discover your flaws.
Use the
Workbook to quickly and easily uncover and target vulnerable
policy areas, such as:
- Written Policies
- Employee Handbooks
- Wage & Hour Procedures
- Job Descriptions
|
- Personnel Files
- Hiring Procedures
- Reviews & Evaluations
- Employment Applications
|
Smart HR Professionals don't "assume" anything – they audit!
Learn More |
Learn more
|
|
|
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = |
|
|
THIS WEEK'S E-TIP: Legal Guidelines for Fair and Consistent
Discipline
It is true that a lot of the litigation aimed at employers
arises out of the
inconsistent application of discipline. To prevent these claims,
some
employers assume that you must apply the exact same discipline
and
follow the exact same procedures for each employee in order to
be
"consistent."
However, you are not required to treat every employee the same
way.
Rather, you should try to treat "similarly situated" employees
in the same
manner. Below you will find case examples that explain how to
handle
employee discipline fairly and three steps you can take to limit
inconsistencies.
What Courts Look For in Disciplinary Action
Typically, courts consider a number of factors to determine if
employees
are similarly situated and being treated fairly, including:
- Job duties and status;
- Length of employment;
- The nature and severity of the incidents leading to
discipline; and
- Past performance and disciplinary records.
For example, an employee who has been with the organization
for five
years and has a good performance record with no disciplinary
infractions
may be treated more leniently than an employee who has only
worked
for a year and has several documented performance or
disciplinary
problems. In a different example, a manager who uses profanity
may be
disciplined more severely than a nonmanagerial employee who uses
the
same language, because the manager is supposed to enforce the
work
rules and set an example.
So, to illustrate, in Graham v. Long Island R.R., 230 F.3d 34
(2d Cir.
2000), a court determined that an African-American employee
could
pursue his claim that the employer's disciplinary action against
him was
a pretext for race discrimination. He showed that similarly
situated white
employees received multiple "last chance" agreements before
termination, but that he was
terminated after only one.
Similarly, in
Johnson v. Arkansas State Police, 10 F.3d 547 (8th Cir. 1993),
an
African-American police officer who was suspended without pay
during a
theft investigation was able to go to trial on a claim of race
discrimination
because white officers charged with similar offenses were only
suspended with pay.
In contrast, in Bryant v. Compass Group USA, Inc., 413 F.3d 471
(5th
Cir. 2005), a white cook fired by his food service employer for
stealing
money from a client's table could not prove reverse
race
discrimination
even though an Hispanic employee who allegedly stole food,
alcohol,
and table decorations was not fired. The court noted that,
although both
were low level employees accused of theft, the two were not
similarly
situated. The cook's actions, unlike the Hispanic employee's,
involved
the public and could have resulted in significant loss of
business and
clients for the employer, damage to its reputation, and exposure
to civil
legal liability.
|
|
|
|
^^^^^^^^^^^^^^^ E-Learning & Training
^^^^^^^^^^^^^ |
|
|
|
|
Is Online Learning & Employee Training
Right for Your
Organization?
Click Here for
3 simple steps to find out.
Learn about the
all new
eLeaP™ Workforce Development & Training System
(No capital requirements, technical expertise, or installation needed) |
Learn more ... |
|
|
|
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ |
|
|
And, in Tolen v. Ashcroft, 377 F.3d 879 (8th Cir. 2004), an African-
American assistant U.S. attorney general was fired following
allegations
of perjury, the unauthorized outside practice of law, making false
statements to investigating officers, and misusing both government
resources and his position for personal gain. He could not show that
he
was treated less favorably than his non-minority colleagues who were
accused of relatively minor infractions such as neglecting work and
being
confrontational. The court said the severity and frequency of his
misconduct distinguished him from the employees he offered as
comparables and made them inappropriate for purposes of the
"similarly
situated" analysis.
Three Steps to Consistent Discipline
To help limit inconsistencies and ensure that discipline is
administered in
an evenhanded manner, you should take the following three steps:
- Have clearly written disciplinary policies and procedures;
- Train supervisors in implementing the policies; and
- Continually review disciplinary and termination decisions.
In addition, in your
written policies (see free white paper), you
should
reserve the right to exercise management discretion, particularly in
more
serious disciplinary matters. There may be times when you need to
skip
steps or move immediately to suspension or termination, depending on
the severity of the employee's misconduct or performance
deficiencies.
Likewise, some employers limit the expectations of new or
introductory
employees and do not apply multi-step disciplinary procedures to
them,
since a lengthy process may only prolong a bad hiring decision.
Sound policies and procedures and their consistent application to
similarly situated employees are fundamental tools in discipline.
But an
equally important final element is still needed: the appearance of
fairness. While fairness may not be required by law, it is usually
the
most vital element to your employees and the one that will cause the
most trouble if you leave it out. |
|
|
|
^^^^^^^^^^^^^^^^^^^^^ From Your HR Matters E-Tips Editors
^^^^^^^^^^^^^^^^^^^^^ |
|
Personnel Policy Manual Service
Policy Writing – HR Best
Practices – Legal Compliance Support
The most comprehensive HR policy documentation and
support system
available anywhere
Click
here to learn more or try the Personnel Policy Manual Service
See
what others
say about the Service ... |
Request
a free trial now |
|
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ |
|
|
Subscribers to the
Personnel Policy Manual and HR Policy Answers on
can find a model discipline policy and procedures in
Disciplinary
Procedures, Chapter 808.
Not a subscriber? If you would like to order one of our policy
chapters,
go to:
http://www.hrpolicyanswers.com.
If you have any questions, please call us at 1-800-437-3735. We'll
be
happy to help you. |
|
|
|
^^^^^^^^^^^^^^^^^^^^^^^^ HR Policy & Compliance Resources ^^^^^^^^^^^^^^^^ |
|
|
|
Buy and download individual HR Policies for immediate
use in your
organization. Get complete policy development kits: Model Policy
language, Management Rationale background information, and
References for Legal Counsel documentation.
|
YOU CAN TRUST PPS
Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Interested in using an article from HR Matters E-Tips on your Web site or
in a newsletter?
Please contact Robin Thomas, Managing Editor of Personnel Policy
Service, Inc., to request permission. You can contact her by email at
editor@ppspublishers.com or by
telephone at 1-800-437-3735.
Please note that the information in every issue of HR Matters E-Tips is
the original, copyrighted work of Personnel Policy Service, Inc., and is
protected under U.S. copyright laws. As such, you may not reprint or
publish in any format any article or portion of article from HR Matters E-
Tips without the express permission of Personnel Policy Service, Inc.
Remember, too, we encourage you to pass along any issue of the E-Tips
by forwarding it to friends and colleagues.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
A note to advertisers:
Do you want to reach the human resources market?
Your message can be seen by over 55,000 HR professionals when you
sponsor an issue of HR Matters E-Tips.
Contact Elise Whitman at
ezine@ppspublishers.com
or call toll-free 1-800-437-3735.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
HR Matters E-Tips is a f-r-e-e service of Personnel Policy Service, Inc.
To subscribe, go to:
http://www.ppspublishers.com/ezsignup.htm
© 2007 Personnel Policy Service, Inc. All Rights Reserved.
HR Matters is a registered trademark of:
Personnel Policy Service, Inc.
159 St. Matthews Ave., Suite 5, Louisville, KY 40207
Tel: 1-800-437-3735 - Fax: 1-800-755-7011
www.ppspublishers.com -
www.instanthrpolicies.com
-
www.hrpolicyanswers.com -
www.personnelpolicyservice.com/hrforum
CONTACT US: ezine@ppspublishers.com
FORWARD THIS ISSUE: We invite you to forward HR Matters E-Tips to
a colleague or friend.
|
Personnel
Policy Service, Inc.
Human Resources
Policies, Company Manuals, Newsletters, HR Policies, Training, & Articles
