This post is about three simple rules that all employers should follow. While there are always new topics in the world of employment law that are worth writing about, such as recent Department of Labor regulatory proposals on exempt employees or FMLA opinion letters, the following rules can apply to just about any employment situation. While no employer ever wants to face an employment law enforcement action, if you can prove to anyone, from an EEOC/CHRO investigator, to a judge or jury, that you followed these rules then you have a pretty good chance to prevail: Fairness; Consistency; and, Business Based Reasons for your employment decisions.
Fairness can be summed up as follows: First, every employee is entitled to know what is expected of them, and so you should have accurate, up to date and comprehensive job descriptions, work performance standards, and policies. Second, everyone should know what not to do, and so employers should have policies to spell out what can get an employee in trouble, prohibited behaviors, anti-harassment rules, and related matters. Consistency simply means that the employer always treats similarly situated employees consistently when they are in similar circumstances. This concept covers many things, from earning bonuses to evaluation processes and discipline, and can go a very long way to demonstrate, for example, that you do not discriminate on the basis of an employee’s inclusion in a protected class. Business Based Reasons means this: have an objective, sound, business basis for your decisions. The Equal Employment Opportunities Commission regulations express this nicely in the phrase: “job related and consistent with business necessity…” (See, for example, 29 C.F.R. § 1630.14(c)). The more subjectivity in your decision-making about employees allows speculation about possible invidious motives, and also raises questions about consistency (see Rule 2 above). Demonstrably objective decisions can prevent this speculation.
Put the three together for a winning formula, because if you show your employees you are fair, consistent and make objective, business based decisions, you can show the same to anyone!