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.
2. Enforce your policies every time to avoid condoning an employee's actions.
3. Do not wait too long to give your employee a warning.
4. Do not apply your policies retroactively.
5. Do not pick and choose who you warn.
6. Conversely, avoid giving "blanket warnings" to all of your employees.
7. If you have a progressive disciplinary policy, follow it.
8. Do not enforce illegal policies.
9. Keep adequate records of policy enforcement.
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.