How To Reduce Legal Risk With Consistent Consistency

Consistency in employment practices is a strong safeguard against legal risk. Nine out of ten employment attorneys agree that consistency is crucial to avoiding liability. Ok, that’s not true. Ten out of ten employment attorneys agree that “it depends.” But we all know they would agree that consistency is crucial to avoiding liability if they weren’t so… you know… lawyers. However, it is important to have a clear understanding of what consistency means in an employment setting. The important distinction is not to make the mistake of applying the concept of “consistency” too broadly. There is a risk of conflating “we’ve always done this” with “consistency.”

“We’ve always done this” often disguises “we don’t want to think too much, if at all, about it.” Consider a simple example of an employee requesting sick leave. Does your policy require a doctor’s note? Employers who rely on how they have always done things may say something like, “Sure, we tell the rank and file to bring doctor’s notes, but we have not asked Ted, the floor manager, for a doctor’s note since he got an appendectomy two years ago.” This is not consistent application of a policy; it is a habit with a good story. In fact, the employer is consistently treating its employees inconsistently. Real consistency is treating your employees the same and holding them to the same standards and policies. If one employee needs to provide medical documentation, they all do. Even Ted.

Employers do not usually say, or even think, “we’ve always done this,” outright. Instead, it could be the pattern or the corporate culture. Or “that’s how we do things.” Employers who refer to their company as a big family can be especially susceptible to making this mistake. While this type of culture may be great for morale, it can cause compliance problems. “Family” cultures can normalize informal exceptions and favoritism, enabling managers to bend rules for the people they like. These unwritten carve-outs can look like unequal treatment or bias.

Another problem that accompanies the “we’ve always done it this way” mentality is that it makes employers slow to adapt to new regulations or legal requirements. Starting next year, for example, Maryland employers will need to comply with the State’s new Family and Medical Leave Insurance program. If an employer is too committed to past practices and habits, it can end up on the hook for non-compliance.

What should employers do if the above examples sound familiar? The first thing is to stop the preferential treatment. The longer this treatment continues, the harder it is to fix and defend later. If the issue is straightforward, such as the sick leave example above, you may be able to make the fix by applying the same policies to everyone. Even then, it is worth a call to your employment lawyer to ensure your fix does not create new problems.

If the situation is more complicated—and let’s face it; it is always more complicated—call counsel first. Before you change schedules, deny leave, issue discipline or take other action, it is important to ensure you are not wading into risky legal waters.

Once you have fixed the immediate issue, then it is time to take a hard look at your company policies and practices. Determine whether they are clear, whether they provide exceptions, who determines if exceptions can be made, on what basis, and how such decisions are documented. Then make sure to train supervisors and managers on these policies. These steps are essential for creating a defensible and compliant workplace that reduces legal risk.

Luchansky Law helps employers turn “how we’ve always done it” into clear, compliant policies and trains managers to apply them consistently. We would welcome the opportunity to help you with a handbook/policy review or manager training tailored to your workforce. Call us today at 410.522.1020, or email me at alan@luchanskylaw.com.