Make sure your employment policies don’t box you in

Bill Nolan

I have written here before about how, when your company becomes involved in legal proceedings, you want to be able to tell your company’s story as effectively as possible to neutral third parties who have no background on the dispute and the personalities involved. In employment disputes, one important part of that story will be any employment policies that either side in the dispute thinks may be relevant. You can win or lose cases based on whether the company appears to have followed its own policies.

Repeatedly, I find that policies drafted by the employer have the effect of restricting the employer’s flexibility to deal with individual employment situations. Handbooks that employers ask me to review are almost invariably, in my opinion, too long and attempt to “legislate” more details of handling situations than is realistic. Most employment situations are far more unpredictable than, for example, measuring sales data, and employment policies need to be prepared with that in mind.

Bill Nolan

Two types of policies, both involving often complicated and potentially significant liability, stand out for me as the best examples of this overlegislation.

The first are “reasonable accommodation” policies. These policies are designed to satisfy the employer’s obligations under the disability discrimination laws, which apply even to very small employers.

In short, the disability discrimination laws require an employer and employee to engage in an interactive process to determine whether there are reasonable but not overly burdensome measures that allow the disabled employee to perform job duties she otherwise could not perform.  This is the reasonable accommodation process. Employers sometimes attempt to set forth policies to explain the process with which they will address reasonable accommodation requests from employees.

If you are not already familiar with this area, you may be thinking, that sounds pretty complicated.  If you are already familiar with reasonable accommodation, you already know that it is complicated. This complication, coupled with the fact that every job, every disability, and how each individual deals with a disability is different, means you simply cannot create a template for these situations.

Rather, each accommodation is a bit of a chess game. That analogy is not intended to say that the process is always adversarial. It is not.

But in order to minimize liability, employers need to deal with these situations one step at a time until one of two things occurs. One, the employer and the employee reach a consensus that allows the employee to be a contributor to the business. Or, two, there are not reasonable accommodations that allow that to happen and, one way or the other, the employer and the employee part ways.

Experience tells me that every path is a little different, and the liability-minimizing steps that employers should take are a little different each time. After you take a step, usually you do not know your next step until the employee has responded in some fashion. In other words, after you move your knight, you do not know whether to move your pawn or your bishop until you see your opponent’s next move.

To borrow from Woody Hayes’s famous quote about passing, a policy that sets forth detailed specific steps the employer must take has three possible results, two of which are bad.

One, the steps required by the policy just happen to be exactly what is needed in the particular situation. Two, the optimal steps differ from those required by the policy, but the employer follows it anyway and raises the risk of liability. Three, the optimal steps differ from those required by the policy, but the employer takes the optimal steps and positions itself to be accused later of not following its own policy.

A second important policy that employers sometimes overlegislate is a harassment investigation policy. The analysis here is similar. While the legal ins and out with respect to harassment are probably less tricky than with the many issues implicated in employee health issues, the interpersonal aspects are often very complicated. So the basic principle is the same– these situations are too unpredictable and unique to set out a policy that requires the employer to take certain specified steps in every situation.

Investigations involve many people, and while there are certain best practices that apply to virtually every investigation, how you play that chess game in order to accomplish your objectives of obtaining maximum information and being able to respond in the best way to your findings will develop as the investigation develops.

These are two prominent examples of a common tendency to want to spell too much out in advance. It is necessary to have policies lay a foundation of certain expectations because when you do tell your story in a dispute to a judge or a jury, they will want the sense that employees were treated fairly and were not blindsided by unexpected rules and requirements.

This is particularly true in a larger company. The law recognizes to some degree that people in different parts of a large company with different supervisors and other differences in their employment may be treated somewhat differently, but generally large employers want to avoid significant differences in how employments in Department A and Department B are treated in similar situations.

With great regularity, though, I believe employers tend to err on the side of too much detail up front. When your lawyer reduces the level of detail in your policies, it is probably to best prepare you for those future chess matches.