Wednesday, November 4, 2009

Consistency in Employment Practices: Angel or Hobgoblin?

There is an old saying, “consistency is the hobgoblin of small minds,” that is often used by those who reject accountability and rules. But these people misquote Emerson, who actually wrote, “foolish consistency is the hobgoblin of small minds.”

In fact, based on decades of court decisions in employment law cases, consistency is the simplest way to limit many employment law claims against the employer. I am sure Emerson would agree that such consistency is neither foolish nor a hobgoblin.

To begin with, you need clear, written policies and procedures. (See earlier post, "The Importance of Written Policies.") That seems obvious, but for too many small businesses (defined here as organizations with annual revenues under $25 million), management continues to believe they are “too small” to worry about such formalities or, as I have heard stated a number of times, “we cannot afford to act like a larger company.” (See earlier post, "Managing Risk Through Compliance.")

Perhaps an ulterior motive for not writing down policies and procedures is that managers want to avoid accountability for themselves. The downside, unfortunately, is that it creates a greater risk of exposure to employment practice-based lawsuits. Worse, it makes those suits more expensive because there is more litigation over establishing what the employer’s actual policies were in practice, rather than focusing only on the grievance at the root of the claim.

Especially in a small organization, “flexibility” can appear suspiciously like bias in favor or against a particular race, gender, nation of origin or other protected class. Even where the EEOC lacks jurisdiction, private law suits can threaten significant financial injury to small businesses and organizations. Grant one employee’s request for flexible work hours but deny another and you may face allegations of illegal discrimination without the support of written policies and documented business needs.

If you lack written policies and procedures, make sure you provide true business reasons for your personnel decisions and document them thoroughly—ideally in a written answer to the request. But beware: even a drowsy jury will perk up and spot a sneaky effort to cloak a preferential favor with a fake business reason. And the verdict will not likely be pretty.

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