The downsides of zero-tolerance policies

by Peter Lowe

The concept of zero-tolerance policies is rooted in the criminal justice system, and over the last 20 years, the policies have spilled over into our schools and workplaces. Zero-tolerance policies usually reflect a strong institutional stance on specific types of misconduct (e.g., drugs, theft, and violence) and consistency and severity in punishments. 

In the workplace, zero-tolerance policies typically result in termination for a first infraction. For HR professionals who have been schooled on the need for consistency, these policies may not raise alarms from a discrimination standpoint. However, I’ve seen an overreliance on zero-tolerance policies, which can affect employee relations and damage a business’s reputation as a fair employer.

Zero tolerance defined
Zero-tolerance policies provide for automatic punishment for violating a company rule. Typically, zero-tolerance policies do not give management discretion, and they do not allow managers to consider personal or extenuating circumstances. Proponents argue that the policies demonstrate resolve, provide clarity and certainty, and remove subjectivity and bias from decision making. Detractors point out that a “one-size-fits-all” approach may result in unduly harsh outcomes.

A recent example from Long Creek
Like many of my articles, this one was triggered by a recent event that made headlines here in Maine. Dan Reardon, a former president of Bass Shoe Co., has volunteered at the Long Creek Youth Development Center in South Portland for 25 years. Long Creek is a juvenile detention center that houses approximately 100 young offenders. The facility’s name sounds like it was developed by a well-meaning committee; colloquially, many people refer to the facility as “juvie.”

Reardon visited Long Creek four times a week. He founded the Blanket Project, a popular knitting activity for inmates. I’ve had the chance to meet Reardon, and his commitment to some of the neediest and most overlooked children in our state is inspirational.

Earlier this year, Reardon made a mistake. He passed a note from a boy to a girl in the facility, a clear violation of the rules. He contacted Long Creek’s superintendent to report his error. As a consequence, Reardon has been suspended from the facility and faces the prospect of never being able to return.

If Reardon’s suspension is permanent, it will be an example of the rigid enforcement of a zero-tolerance policy. Many people are calling for him to be given a second chance, and it will be interesting to see the superintendent’s decision.

Reflections
Although Reardon is a volunteer, the debate about punishment occurs in the workplace as well. I suspect I’ve already tipped my hand―I’m not a big fan of most zero-tolerance policies. Consider the following if you have zero-tolerance policies:

1. Bad stuff. Reserve zero tolerance for the “bad stuff.” Theft is a good example. Whether an employee steals $5 or $500,000, it is still a dishonest act that poses a significant risk to your business. Physical violence (e.g., assault) falls into the same bucket.
2. Less egregious cases. My clients may be tired of hearing me say this, but the devil lies in the details. For example, take a statement like “I’ll kill him!” When taken at face value, that’s clearly a troubling statement, but so much depends on the context. Schools have run into problems by suspending kindergarten students for making those types of comments under zero-tolerance policies. If an employee makes that type of statement, investigate the context in which it was made. Not every “kill him” comment should result in termination.
3. An employee’s history. One of the problems with zero-tolerance policies is that employers ignore all the good work an employee has done. Reardon’s extraordinary dedication will count for nothing if the superintendent decides that he will not get a second chance because he passed a note. Employees will make mistakes. You’ll make mistakes. Look at an employee’s work record and character to see whether a mistake was an aberration.
4. Chances of repetition. Some of the biggest mistakes we make are great learning opportunities. When a client is on the fence about terminating an employee, I suggest having a meeting with the employee. For example, let’s say it’s a harassment case. The perpetrator has had a chance to weigh the gravity of the situation. The crucial question is, “Does he get it?” If the employee remains defensive, that is usually not a good sign. Take into account whether a lesson was learned and the prospects for future trouble.
5. Judgment. In these situations, the best attribute you can bring to the table is sound judgment. A zero-tolerance approach removes this key factor from the equation. Exercising sound judgment and making a balanced and fair decision will promote the best interests of your organization.
6. Second chances. If you choose to give an employee a second chance, document your decision. I advise clients to write explanations so outsiders can understand their decision. Explain why you believe the employee has learned a lesson and should not be terminated.

Final thoughts

Fairness should be your compass when making tough personnel decisions.I’ve found that adopting zero-tolerance policies for less serious offenses can result in outcomes that many people perceive as unjust.

Peter Lowe is a partner with  Brann & Isaacson in Lewiston, Maine, serving as lead labor counsel for some of the premier employers in Maine, including L.L. Bean, Inc. In this role, Peter advises clients on personnel practices and employee relations matters. He is the editor of Maine Employment Law Letter. He can be contacted at plowe@brannlaw.com