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A COMPREHENSIVE GUIDE TO ENFORCING YOUR POLICIES

(The following article is from the third quarter 2014 edition of Texas Business Today. The article is written by Velissa Chapa, Legal Counsel to the Commissioner. It has so much good information I am reprinting it for you in its entirety.)

Losing an unemployment claim can be frustrating. Sometimes the loss is inevitable because the employee did not do anything wrong. Maybe you had to downsize and laid off some employees in the process. Maybe you let them go simply because they were not fitting in with the rest of your staff. In those cases, Texas employers have to face the hard truth that the law allows employees to receive unemployment benefits because the job separation occurred "through no fault of their own."

Now imagine what it must feel like to fire someone for violating your policies and then to lose the unemployment claim because you did not adequately prove "misconduct connected with the work." Maybe it has already happened to you. If so, then you understand how upsetting it can be to know that your employee broke the rules, but for whatever reason, the case was decided against you. If this sounds like your personal experience, then this article may help to clarify why you lost the claim so that you can be more successful the next time around.

The first step, of course, is to have actual policies in place. As a quick crash course, here are the basics you need to follow in regards to this first step. First, put your policies in writing. Make sure the policies truly reflect the boundaries you are setting. Be clear. Second, have your employees sign and date an acknowledgement form to prove they received them. Third, review your policies annually. If your policy sounds like it is open to interpretation, change it. If you change your policies, schedule a meeting to discuss your updates with your employees. Give them some advanced notice (how much is up to you) of the meeting, in writing. Once you update them, have them sign a new acknowledgement form. The general idea is that you want to prove you had policies in place and that your employees knew or should have known about them.

The next step is to enforce the policies, which is one of the hardest things for an employer to do for a variety of reasons. Perhaps you have always wanted to run your own business, but you have never been comfortable with confrontation. Your employees might be family members or friends, or you simply do not want to be disliked. You may wish to help your employees in any way that you can. It is very common for employers to decide not to enforce a policy because they feel that the employee deserves a break, even though the policy was fair and the employee clearly broke the rules. In these cases, employers often regret their decision because they lose unemployment claims due to inconsistencies in policy enforcement.

Giving your employees too many chances may sound like a great idea at the time, but it can easily guarantee a loss for you if they file for unemployment. When at a crossroads, ask yourself which hat you should be wearing. As the employer, you will often need to take off your "friend" hat and put on your "boss" hat. As hard as that might be, it is necessary to stay in control of your business.

There are a few other reasons why employers do not enforce the rules, and they are all equally harmful. You might keep an employee on because you are incredibly shorthanded with workers. You might decide not to enforce the rules because it takes up too much time and you are busy enough as it is. You might not even know what the policies are because the handbook is lengthy or was provided to you from an outside source. Essentially, you choose not to enforce your own rules out of convenience. While you may justify not enforcing a policy for any one or all of those reasons, be aware that none of them are acceptable reasons when arguing an unemployment claim. These reasons can only hurt your case. In order to keep the ball in your court, you do not want to do anything that makes your conduct as an employer appear inconsistent.

Such enforcement can lead to disparate treatment of your employees, which can cause mistrust, decreased morale, and a loss of credibility. You can even open yourself up to a discrimination lawsuit. The following errors are very common and can destroy your chances of winning an unemployment claim or a discrimination suit.

1. Do not "counsel" your employees; warn them.
All too often, employers try to "counsel" their employees, which is understandable. You care about your employees deeply and want to give them guidance on how to improve. You may even be a fan of the "compliment sandwich," where you wedge a criticism in between two compliments in order to keep the employee's spirits high. While this is a commendable thing to do as a caring person, it can backfire on you as an employer. "Counseling" your employee as opposed to warning them can lead to a quick loss on an unemployment claim. The employer must prove that employees knew they could be fired if they continued to make that mistake. "Counseling" your employees may make them feel like you are guiding them rather than warning them. Therefore, it is vitally important that you use the work "warning" and avoid lax language.

2. Enforce your policies every time to avoid condoning an employee's actions.
You have policies, but you do not strictly enforce them. This occurs more often when an employer is friends with or related to their employees and it can cause you to lose your case. Do not create a pattern of letting things slide. If you suddenly fire an employee for an action you ignored in the past, it could look like there is another reason (possibly an illegal reason) for firing him. Say what you mean and mean what you say. A final warning should be just that: a final warning. If you give several final warnings, then the employee may not believe that his or her job is really in jeopardy. On the same note, zero tolerance should mean zero tolerance.

3. Do not wait too long to give your employee a warning.
Warn your employee as soon as possible after the policy violation occurs. Employers frequently lose unemployment cases because the incident warranting the reprimand was "too remote in time." The longer you wait, the more opportunity the employee has to argue that there must have been an alternate reason for receiving the warning. The analysis is on a case-by-case basis. Think of it from the standpoint of what a reasonable person would do. In the past, employers have won unemployment cases by showing that the delay occurred for a logical reason. For example, if you needed time to conduct an internal investigation, or you had no way of contacting the employee until he returned to work, then you may have an acceptable reason for a delay. If there is any delay, be sure to keep excellent records as to the reason for it in order to justify your actions.

4. Do not apply your policies retroactively.
It can be very tempting to warn your employee for something that you think should be a policy, but you do not yet have an actual policy forbidding the conduct. The logic behind this rule is that it is unfair to warn an employee for violating a policy that he did not know existed at the time of the act. That being said, there are some circumstances where you do not necessarily need a specific written policy in order to discipline your employee because any reasonable person would understand that the conduct was unacceptable. An example of this would include severe criminal activity. Note, however, that in these cases, the employer must be able to prove that such activity actually occurred and that the conduct was connected with the work.

5. Do not pick and choose who you warn.
Sometimes, an employer only reprimands some, but not all, of the employees who violated a policy. The employer can lose all of his credibility in this instance because it suggests favoritism. This is especially common in environments where the employer is either friends or family with the employees. Do not get caught in this trap. Apply your policies fairly and equally to everyone.

6. Conversely, avoid giving "blanket warnings" to all of your employees.
It can be tempting to warn everyone if an employee breaks a rule, but you should never do so. If you do, not only will you have a hard time winning your appeal, but you may also expose yourself to a discrimination lawsuit. Even if you win such a lawsuit, you will spend a considerable amount of time, effort and money to win your case. Do not give an employee a warning unless he actually violated your policy.

7. If you have a progressive disciplinary policy, follow it.
Do not skip steps unless your policy clearly allows for it. If the act is so egregious that a reasonable person might expect to lose his job, then your policy may allow you to skip a step and go straight to termination.

8. Do not enforce illegal policies.
If you warn or fire an employee for violating a policy that happens to be illegal, you can lose your unemployment claim and expose yourself to additional liability. For example, the National Labor Relations Act (NLRA) guarantees employees the right to discuss the terms and conditions of their employment freely, whether it be at the office water cooler or online. A blanket policy prohibiting employees from discussing all work matters will likely be an illegal policy. As a general rule, if a red flag goes up in your head as you are writing or reviewing a policy, then it is probably an illegal policy. If you determine the policy is illegal, take it out of your handbook immediately and inform your employees of the change.  If a policy is added, deleted or changed, employees need to be notified and a new statement must be signed by each employee to prove they are aware of the changes.

9. Keep adequate records of policy enforcement.
Employers can lose credibility when they appear to be unclear as to the details of the incidents. This is why it is important to warn employees in writing with a third party present. You want proof of exactly what happened in case you need to explain the situation to an outsider for the purposes of an unemployment claim or other lawsuit.

In conclusion, if you follow the above nine policy enforcement rules strictly, you have a much better chance of proving misconduct in an unemployment claim while also keeping other types of potential lawsuits at bay. For a list of sample policies to use (and enforce) in your business, Texas Work Force; or, if you would like a custom policy for your store, contact us. For more information on our policy manuals, visit Policy and Procedures.

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