April 11, 2023

A Reminder for HR and Management: Follow Your Policies!

This case initially caught my attention because of its ruling about an employer’s surveillance of its employee during working time.  When I read it, however, my bigger take away was a key reason the employer lost another part of the case; it failed to follow its own policy when it issued corrective action to an employee (Stern Produce Company, Inc.).

The company’s owner and acting HR Chief issued a written warning to an employee for his remark to a coworker about what he perceived to be the coworker’s national origin and sexual orientation. That comment violated the company policy that prohibited, “use of disparaging or abusive words or phrases, slurs [or] negative stereotyping.” That employee was also known to the owner and the acting HR Chief as being an active union supporter. As a result, the employee filed a claim with the National Labor Relations Board charging the employer violated the National Labor Relations Act, e.g., it discriminated against him because of his union activities.

Now, the employer gets to show that it had a legitimate, non-discriminatory reason for issuing the corrective action, e.g., the employee’s violation of company policy. Unfortunately for the employer, the NLRB found, “The record establishes, however, that the Respondent’s actions in this regard were a departure from its prior disciplinary practices. Despite maintaining a progressive disciplinary policy, the Respondent’s written warning…is the only example in the record of an employee receiving a written warning for a first infraction involving offensive language.” OOPS!

Lessons learned. Managers, supervisors, and – yes – HR professionals need to follow not just company policy but past practice. If you deviate from the latter, it may create an impression that you are treating this employee differently for some unlawful reason such as the employee’s age, race, religion, sex, or – union activity.  On the flip side, if you find a lapse in policy enforcement, rectify it. (Re)Set the expectation. Let your employees know what you expect of them and that you will hold them accountable moving forward.  And, from an employee relations standpoint, exercise the Power of Why! Tell your employees why you are enforcing the rule. How does it help them, keep them safe, enhance business operations, etc.?