Policy and Documentation Can Help Manage Workplace Disputes

– Christopher Butler, Esq.

 

Disputes are inevitable in the world of commerce, no matter how efficient a company’s operations might be. For certain, disagreements are commonplace between business partners, service providers, vendors, and employees. Left unresolved, this friction can easily cause disruption and threaten the businesses’ overall achievement and profitability. As a business owner, it’s crucial to have a plan in place to effectively navigate disputes whenever they arise. Toward that end, in this article we’ll focus on worker disputes in particular. 

 

Examples of Workplace Disputes

 

Throughout the course of any given day, companies may encounter a myriad of disputes, such as those pertaining to customers, business contracts, partnership agreements, intellectual property interests, and employment, only to name a few. As a modern society, we tend to follow unspoken “social contracts,” which define our expectations of how we interact with and treat one another (e.g., courtesy to our elders, consideration for the less fortunate, hushed voices in the waiting room, resisting the urge to swipe a coworker’s’ pita chips, etc.). These unwritten agreements vary in application, complexity, and understanding, and are driven by regional norms, cultural differences, and competing attitudes and demeanors. Thus, it’s easy to understand why people disagree so much.

 

Social contracts aside, in the workplace context employment contracts are relatively rare, those being typically reserved for corporate executives and other key, highly-paid professionals. Rather, most employees are employed at will, which means both the worker and the company may sever the relationship at any time without reason or notice. Nevertheless, workplace disputes are particularly complicated because they’re often based on miscommunication, misunderstandings, and unfulfilled expectations, which are further fueled by anger, disappointment, emotion, and stress, among other contributing factors. And, considering that upset employees often invoke, yet frequently misunderstand, prevailing state and federal employment laws, what may start off as a simple shouting match and hurt feelings may eventually evolve into an EEOC charge, or worse, a lawsuit. 

 

While some workplace disputes are seemingly cut and dry – such as when a recently terminated employee presents tangible proof of supervisory harassment and discrimination, along with reams of supporting documentation – in reality, most workplace disputes are a little more nuanced, largely a product of appearances, assumptions, and circumstances. For example, assume that an employee becomes pregnant at the same time that company management is already in the process of terminating her for frequent tardiness and poor performance. Mere seconds before the company intends to meet with the employee to deliver her separation notice, the employee discloses her pregnancy to her boss. Despite this knowledge, the company nevertheless proceeds with the termination with haste. Yet, as HR soon comes to learn, upper management failed to document its thought process much less the employee’s prior verbal counseling or late arrivals before moving to terminate. Given the timing, the employee might understandably conclude that her employer fired her simply because she’s pregnant. Accordingly, days after her termination, the employee files an EEOC charge, and shortly thereafter, a federal lawsuit, alleging sex and pregnancy discrimination. Here, where perception becomes reality, we have the proverbial tempest in a teapot. And, it’s easy to understand how and why effective performance management and documentation might have avoided this outcome, even where the employee’s work performance was deficient and the employer’s intentions were entirely lawful.

 

Managing Workplace Disputes with Written Policies and Documentation

 

Most large companies maintain volumes of policies, manuals, and protocols that define and govern their employment relationships. However, many small-to mid-sized employers lack an articulated set of workplace rules and expectations, essentially leaving employees to wonder what and how much is expected of them, what is/isn’t permissible conduct, and even how their performance will be evaluated. Even companies that have initially developed written guidelines and policies eventually come to find them to be outdated, inconsistent, and in great need of overhaul and revision some 3-5 years later. This can often lead to worker confusion, frustration, poor performance, mismanagement, and surprise terminations. And, as we’ll discuss another time, an employee should seldom be surprised when he’s being fired.

 

Aside from written policies and procedures, many employers simply delay or decide against disciplining or terminating underperforming employees because they realize those employees have not been monitored effectively. Other times, appropriate discipline or termination is avoided simply out of fear of what may happen. That’s not good for business. Indeed, retaining the most talented and hardworking employees helps keep the lights on, whereas holding on to poor performing and noncompliant workers leads to lost productivity, poor morale, workplace disputes, and yes – even employment law claims. 

 

To effectively navigate workplace disputes caused by misconduct, performance shortcomings, lack of supervision, and the like requires experience, a patient mind, a steady hand, and a well-planned strategy. And, in turn, this can help avoid having workplace disputes evolve into employment claims and expensive litigation. So, what can you do?

 

• Policymaking – For starters, smart employers create and implement comprehensive employment policies and protocols, and hold employees and management accountable for complying with them. Ideally, an employer of any size should create and continuously maintain an employment handbook, describing its organization’s policies, procedures, codes of conduct, complaint reporting mechanism, attendance tracking, and so forth. The handbook should be distributed to all employees and those workers should be required to acknowledge in writing that they have read, understand, and agree to abide by its terms. 

 

Advising employees of the company’s performance expectations and the rules that workers are expected to follow – a set of guardrails, if you will – can have a profound effect on minimizing the occurrence and severity of workplace disputes, as well as making them easier to resolve when they do occur.

 

• Documentation – Another thing that wise employers do is document, document, and document. Really, this is the low-hanging fruit, but gets frequently overlooked or simply disregarded. In addition to effective policy-making, keeping extensive documentation and personnel records can offset the frequency and complexity of workplace disputes, particularly those relating to employee performance, conduct, and expectations. 

 

For example, let’s say that an employee has received a final written warning for habitual tardiness and failure to complete projects on time. In turn, the employee contends that he’s being singled out for discipline due to his age and that he’s being subjected to unlawful harassment because of his political affiliation. Here, the company’s consistent and careful documentation of the employee’s attendance and work performance could easily substantiate management’s thought process and rationale for issuing discipline (or deciding to terminate). This is particularly so if the employee had been consistently provided with, and required to acknowledge receipt of, written counseling/performance documentation, prior to this final event. If done well, that documentation would show that the employee had been appropriately warned of the consequences of his behavior in advance his final warning (or termination). But, without that documentation, the disgruntled employee is able to write the narrative, which can ultimately prove fatal in an employment law case.

 

The Takeaway

Workplace disputes are inevitable. Yet, the frequency and impact of those arguments can be minimized by maintaining and distributing a well-drafted policy manual or employee handbook and committing management and HR to keeping consistent and complete documentation. In fact, transparent and evenly applied policies and concise documentation can even improve the employer-employee relationship. And, lest we forget, effective rulemaking and documentation can make or break an employment law case and win your lawyer’s love. If your business is encountering difficulty managing workplace disputes – or simply seeks avoid them – we have decades of experience helping business-owners, management, and HR professionals avoid, resolve, and defeat employment law claims, and perhaps we can help you too – contact Chris Butler with Agenzia.