Employment policies: Do they keep organizations running smoothly? Or are they trouble waiting to happen? The answer to both questions is: sometimes.
Human resources professionals spend a lot of time working on policies they hope will lead to productive, fair workplaces. Often, though, policies can cause more problems than they solve. Adding to the dilemma, HR practitioners and legal experts don’t always agree on what makes a good policy. 
Progressive discipline: Wise or weenyism?
Liz Ryan, CEO of Human Workplace, an HR consulting and publishing firm, recently posted an article on LinkedIn listing some common employer policies that she thinks should be abolished. For example, she called progressive discipline policies “the worst Godzilla weenyism I know.” She went on to say “lousy managers use progressive discipline policies as a crutch.” She advocates talking with employees as adults when things go wrong instead of issuing warnings that may lead to termination.
Others beg to differ. “Advocating for the abolition of progressive discipline assumes that all supervisors are wise, fair, and measured in their responses to employee misconduct and performance issues and that they will all arrive at the same level of discipline for the same infraction,” says Peter D. Lowe, a partner with the Brann & Isaacson law firm in Lewiston, Maine.
For example, Lowe says, when someone claims discrimination after getting a warning for poor customer service, the investigator invariably asks for all examples of discipline against all employees for customer service issues over a period of time. “Without progressive discipline providing a framework, I fear supervisors could be all over the map,” he says.
Lowe doesn’t deny that progressive discipline policies can be troublesome. “The problem is slavish adherence to the progression and supervisors using it as a substitute for exercising sound judgment and some discretion,” he says. “Also, progressive discipline tempers against overreactions. Supervisors can build up a head of steam and push for termination when really the employee deserves at least one chance. If a supervisor wants to skip steps, have him make the case for it, document it, and if he makes a strong case allow it to happen. So it comes down to how you manage progressive discipline, not the policy itself.”
Tara Eberline, an attorney with Foulston Siefkin LLP in Wichita, Kansas, agrees that progressive discipline policies can be useful since the purpose of the policy is to encourage managers to talk with employees soon after a problem is identified instead of waiting for a performance review. Progressive discipline provides employees notice of problems and gives them an opportunity to improve, she says.
Reference rules
Another area that sparks differing opinions concerns whether managers should be allowed to give references on former employees. The thinking goes that a reference-seeker can’t file a defamation lawsuit if the manager never has the opportunity to provide a bad reference. But Ryan calls that thinking flawed. “If you don’t trust managers to avoid lawsuits when they’re giving references for past employees, why do you let them manage your current employees?” she asks.
Lowe agrees that fear of defamation claims often is overstated. “Employers need to get candid references on applicants, and if you don’t give them how do you expect to get them?” he asks. He says managers should check with HR if asked to give a reference on someone who was fired for misconduct, but “if the person was let go for a skills fit issue, you want them to be able to move on and find a new job.”
Another problem with no-reference policies is that they’re often not followed,” Lowe says, since “so-called personal references are given by your employees using their job title and corporate email.”
Gary S. Fealk, an attorney with Vercruysse Murray, P.C. in Bingham Farms, Michigan, disagrees that employers should scrap reference bans. “It is difficult to control what people will say, and one person with bad judgment can lead to a lot of trouble.” He advocates a “middle road” in which no references are to be given without a signed reference request form that releases the company from liability.
Eberline says the lawsuit risk isn’t the only reason to have a no-reference policy. “These policies also make sense because managers who are called for job references do not always have all of the information necessary to give an accurate and appropriate job reference,” she says.
Attending to attendance
Ryan decries what she calls “grade-school attendance policies” that punish employees for being a few minutes late. She says a better approach is to talk to the employee and work together to find a solution.
Although Ryan’s plan sounds good, Lowe says it’s not always workable. “If you manage a distribution center that employs 5,000 employees and you guarantee next-day delivery, you need employees to show up, and you must have clear expectations and consequences if they don’t,” he says. “A good leader administers the policy by inquiring about the obstacles to getting to work, but for fairness and consistency, relies on a clear policy.
Eberline believes that flexible attendance policies can make sense, but in many workplaces, a strict policy is necessary. “When one shift of employees cannot leave until their replacements arrive, for example, it is critical that employees arrive on time,” she says. “Additionally, more structured attendance policies make it easier to treat employees equally, rather than relying on supervisors to make judgment calls about when an employee should be disciplined for tardiness or attendance issues and risking a claim that two employees were treated differently.”
Fealk agrees that the need for a strict or flexible attendance policy depends on the workplace. “A coaching kind of atmosphere might work in certain settings,” he says. “However, there are a lot of chronic absentee problems that the employer is not going to solve by ‘talking it out.’”
Policy pointers
The attorneys remind employers that regardless of how they feel about particular rules, certain policies are must-haves. For example, employers need policies covering at-will employment; discrimination, harassment and retaliation; and adherence to the Fair Labor Standards Act, Fealk says. Other policies are must-not-haves. For example, employers must not have policies prohibiting employees from talking about wages, and they must not have policies that have the effect of making an employee handbook a contract.
Lowe advises employers against “zero-tolerance” policies. “We might feel that we have to take strong stands on some issues and express our feelings of abhorrence or intolerance for behaviors by expressing zero tolerance,” he says. “Inevitably the rigidity that follows causes problems.”