In yesterday’s Advisor, we covered “almost smoking gun” mistakes; today, more mistakes your managers make, plus an introduction to a unique, checklist-based audit system.
Today’s mistakes are again courtesy of the Rhode Island Employment Law Letter written by attorneys at the law firm of Little, Medeiros, Kinder, Bulman & Whitney, P.C.
As with evaluations, discipline must be applied consistently among all employees. For example, if employee A and employee B, similarly situated, engage in similar misconduct, both employees should receive the same type of discipline. Inconsistent discipline is difficult to explain and can help an employee argue that he or she received harsher discipline because of a protected characteristic such as race or gender.
In addition to maintaining consistent disciplinary practices, you should ensure that you keep a written record of the discipline. Even if the employee merely receives an oral warning, there should be some notation in the personnel file.
Written records make it easier to show a jury or judge how you advised employees that their conduct was unacceptable and gave them another chance. It’s difficult to later argue that you didn’t promote an employee because of his or her tardiness issues when there’s no record that you ever disciplined the employee for being tardy.
The Ultimate Discipline
Finally, the same rules apply to the ultimate discipline — termination. For example, if you suspend employee A for misconduct but fire employee B for engaging in the same misconduct, you will quickly find yourself in a difficult position.
In a lawsuit, employee B can easily create an inference that his dismissal must have been for some impermissible reason rather than for his alleged misconduct. While you can attempt to offer an explanation for the inconsistent treatment, it may fall on deaf ears.
Find problems before the feds do. HR Audit Checklists ensures that you have a chance to fix problems before government agents or employees’ attorneys get a chance. Try the program at no cost or risk.
Bottom line
You should look at every employment decision you make from all angles and determine whether it could be misconstrued to support an employee’s claim. If you find yourself having to provide a complicated explanation for your decision, chances are you need to step back and reevaluate whether it could withstand scrutiny in a lawsuit. Otherwise, you may find yourself in a difficult position when trying to defend your decision.
What’s the best way to find out if “almost smoking gun” problems are developing in your organization? Regular, systematic audits.
In fact, audits are the only way to make sure that employees in every corner of your facility are operating within policy guidelines. If you’re not auditing, someone’s probably violating a policy right now.
The rub is that for most HR managers, it’s hard to get started auditing—where do you begin?
BLR’s editors recommend a unique product called HR Audit Checklists. Why are checklists so great? Because they’re completely impersonal, forcing you to jump through all the necessary hoops one by one. They also ensure consistency in how operations are conducted. That’s vital in HR, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.
Using the “hope” system to avoid lawsuits? (We “hope” we’re doing it right.) Be sure! Check out every facet of your HR program with BLR’s unique checklist-based audit program. Click here to try HR Audit Checklists on us for 30 days.
HR Audit Checklists compels thoroughness. For example, it contains checklists both on Preventing Sexual Harassment and on Handling Sexual Harassment Complaints. You’d likely never think of all the possible trouble areas without a checklist; but with it, just scan down the list, and instantly see where you might get tripped up.
In fact, housed in the HR Audit Checklists binder are dozens of extensive lists, organized into reproducible packets, for easy distribution to line managers and supervisors. There’s a separate packet for each of the following areas:
- Staffing and training (incorporating Equal Employment Opportunity in recruiting and hiring, including immigration issues)
- HR administration (including communications, handbook content, and recordkeeping)
- Health and safety (including OSHA responsibilities)
- Benefits and leave (including health cost containment, COBRA, FMLA, workers’ compensation, and several areas of leave)
- Compensation (payroll and the Fair Labor Standards Act)
- Performance and termination (appraisals, discipline, and termination)
HR Audit Checklists is available to HR Daily Advisor readers for a no-cost, no-risk evaluation in your office for up to 30 days. Visit HR Audit Checklists, and we’ll be happy to arrange it.