We know that zero-tolerance policies are used and touted in many workplaces (and schools), regarding drugs, bullying, harassment and all types of violence, but do they work? Is the workplace and are our schools safer because they have zero-tolerance policies? Do you feel safer? Last week we took our first glimpse at zero-tolerance policies, how they work and the underlying assumptions. Click here if you missed that post. We also started to get a glimpse of some their, shall we say, imperfections. If you are an employer (or a school administrator) and you are thinking about instituting such policies what might you need to know beforehand? Let’s find out, after the jump…
(image from thedailysheeple.com)
While our main focus with respect to zero-tolerance policies is on workplace violence prevention, we saw last week that employers do not necessarily restrict such policies to deterring violence. Perhaps the best example of how employers often implement zero-tolerance policies–and how that application may actually be counterproductive is Barton v Rona, a 2012 case from Ontario. The plaintiff in this case (Barton) was an Assistant Manager at a Home Depot. The store had scheduled a training on its second floor. One of their employees would not be able to attend, because he was wheelchair-bound and that floor was not accessible by wheelchair. Barton arranged for this employee to be separately trained the next day. The employee’s co-workers, however, arranged for him to be taken upstairs using an order picker truck. This method was against the store’s safety policies. Barton, when told by his employees of the plan, reminded them that alternative accommodations were already in place. He did not authorize use of the order picker truck. The employees went ahead the next day and transported their co-worker using the lift. Barton was not in the building at the time. Home Depot terminated both Mr. Barton and the employer that operated the lift. The court, while it found that Mr. Barton should have responded more forcefully to prevent the incident and uphold Home Depot’s safety rules, felt that he was wrongfully terminated and awarded him 10 months’ back pay. The court’s reasoning: the employer failed to consider the proportionality of the misconduct with the sanction imposed.
While the court in Barton v Rona was applying precedent (i.e. Canada law) the point it makes is one we should consider here in the States: zero-tolerance policies as currently applied to do not take into account specific circumstances or even the severity of the misconduct, and often impose consequences that may be grossly disproportionate to the actual misconduct. That is a significant “downside”. In addition, companies can end up losing otherwise good and valued employees simply because they are implementing a one-size-fits-all policy. That’s not all, however. Here are some other minuses to zero-tolerance policies as currently defined and applied:
- While zero-tolerance policies are intended, in part to minimize liability for harassment, workplace accidents, hazards, etc., a termination resulting from such a policy can actually lead to more litigation, as employees will often allege wrongful termination. The claims may include allegations that the alleged violation was a pretext for discrimination. Similarly, employees may allege that the termination is retaliation for them having engaged in other activity protected under Title VII or similar statutes (click here, here and here for review);
- Zero-tolerance policies, because they are so rigid, will in many cases not be applied with the intended uniformity, which can also lead to allegations of discrimination by employees who belong to legally protected classes, who feel that other similarly situated employees, who are not members of a protected class received less harsh treatment;
- Employees are often less willing to report violations of these type of policies, knowing that they might get their co-workers fired for violations that would not normally warrant termination. Encouraging a culture of secrecy can actually create a climate that actually allows bullying or other violent behavior to escalate. This result is the exact opposite of the one intended by the employers that have implemented such policies.
- Employees who apprehend co-workers, customers or other members of the public, therefore defending themselves or others could end up being fired. Should we be discouraging employees from defending themselves or others?
- It is, unfortunately, not uncommon for disgruntled former employees to return to the workplace to commit the very violence that the zero-tolerance policy was initially intended to prevent;
- Zero-tolerance policies banning weapons in the workplace may run afoul of some state laws that allow citizens to possess weapons — even in the workplace;
- Some zero-tolerance policies work to reject any candidate with any criminal history. This type of policy violates EEOC guidelines (which in turn contend that such policies violate Title VII) as well as state and local laws, known as “Ban the Box” legislation. Click here, and here for a review of those points.
So now what? If zero-tolerance is not the answer, does it mean we must tolerate bullying, harassment, violence, etc in the workplace and in our schools? No, absolutely not! Perhaps Employers need to consider proactive, not rigid, reactive or knee-jerk responses. What might those be? Glad you asked! Since I’ve taken up enough of your time for now, we’ll discuss that next week. See you then.
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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