When we talk about the often tricky task of drafting rules and standards for your company, we harp on the importance of writing out all of your rules in your handy dandy employee handbook. In writing out the rules, you give your employees clear expectations about behaviors and conduct and because it’s in the employee handbook that goes out to everyone, it’s implied that the same rules apply across the board. What we rarely discuss is whether all rules always have to apply to all employees and whether it’s okay to have one list of rules for one group of folks and another set for the other.
Of course, we’re not talking about the major rules that your company lives by, such as your non-discriminatory hiring practices or your code of ethics, but rather some of the fringe rules that might not make sense to enforce for all employees across the board, such as restrictions on personal cell phone use or even uniform standards. Below, we discuss both sides of the coin, pointing out why it pays to be consistent and why it is okay to break the rules in some instances.
Why you should be consistent with rules:
When we talk about creating a set of rules for your business, we first talk about the beloved employee handbook, and generally follow it up with a reminder that in order to avoid potential legal pitfalls, they must be applied across the board. Employers who apply one set of rules for one group of employees, and another set for another are far more likely to have an employment claim lodged against them and are far more likely to lose since justifying your inconsistent rule application isn’t generally looked upon fondly by the courts. A second key reason why consistency matters is because having one set of rules for one group and another for a second group creates a divide. One group will be seen as the haves, and one as the have-nots and it will very quickly result in a real nosedive in employee morale, which in turn will cause an uptick in employee turnover.
Why you should be willing to bend the rules:
If you have a business with many different departments, all completing very different work, it may seem frivolous to make sure that everyone abides by the same rules. Company policies, such as use of your own cell phone during work hours, may not be feasible for your employees who travel frequently for work and are thus on the clock when they’re up in the air between client meetings or presentations. However, for an employee that works on the store floor, banning the use of their cell phone during working hours ensures that they are focusing on the customers and using their time more efficiently. Another good example in our current Covid-19 pandemic era is employees in some departments being authorized to work from home, while others are required to come into the office and not provided the same courtesy, likely due to the fact that their work simply can’t be completed from a remote locale.
When you can bend the rules:
As the examples above suggest, it is possible to have different sets of rules for employees working in different departments or who have grossly different job functions. In these cases, you can even outline in your employee handbook which rules apply to which members of your workforce (such as making the personal phone exception for your traveling sales staff, etc). Where it becomes super murky, however, is when you are inconsistent with rule enforcement among employees with similar job functions. If you let one accounting manager come in late to work, but reprimand a peer for being tardy, you could find yourself in some legal hot water. That is unless you can prove that the reason that you let it slide for one and write it up for the other is non-discriminatory, which in and of itself can be tricky to prove.
How you can protect yourself:
As we touched on above, the biggest way that you can protect yourself from lawsuits is to have explicitly written policies. If you have rules for different departments, you can separate your employee handbook accordingly so that folks don’t have to weed through a host of rules and only see those relevant to their role (which can help with that haves vs have-nots feeling we talked about earlier). In addition to serving as a guideline for employees, these rules also can be referred to by managers and supervisors to ensure that they are enforcing the appropriate rules for any given department consistently across all employees within that unit. For extra assurance, you should plan for folks at the supervisory and higher level to receive training on how to enforce rules appropriately and consistently across the board to help reduce the risk of a discrimination lawsuit. Finally, the last level of protection comes from documenting any disciplinary action taken against an employee, including what rule was broken, what the written consequence for the infraction was, what the actual response was, and any preceding or follow-up information needed. In having good documentation and keeping it on file for the required time, you can be sure that you will be best prepared in the event of a lawsuit.
How can Abel HR help:
Figuring out if and when you can deviate from the rules is tricky business, but you don’t have to do it alone! If you are not sure if your deviation is kosher, we would be happy to talk it through and help you consider the argument from a legal perspective. Further, we can work with you to update your employee handbook accordingly and even take the lead on training your managers, both on the new change and how they can implement the rule fairly and consistently for their team members. Finally, we can help you document any infractions of said rules, making sure that your write-up of the events will stand up in court and keep you from a hefty payout!
To learn more about our service offerings, call us at 609.860.0400.
