Effective and efficient employment policies and procedures can offer tremendous value to a company. However, if a company fails to implement effective policies and procedures and/or fails to strictly comply with the policies and procedures, these failures could be very costly to the company.
For example, if a company does not have effective progressive discipline policies and procedures, it may be very difficult and extremely costly to terminate the employment or change the terms and conditions of employment of an employee that falls within a class of persons that may be protected by federal or state law. Taking this example, further, assume that the company would like to terminate the employment of a woman employee who is over 40 years of age because the employee has incurred in several performance deficiencies. Yet, if the company failed to promulgate effective progressive discipline policies or failed to implement such policies, the termination of the woman employee may result in the employee filing a charge of discrimination that would need to be defended.
Specifically, without having documented progressive discipline assessed on an employee that has performance deficiencies, the company may not be able to meet its burden of proof that there was a non-discriminatory reason for terminating the employment of the employee. In particular, under Title VII of the Civil Rights Act of 1964 (the law which protects employees in the workplace), in order for an employee to establish a prima facie case of employment discrimination, the employee need only show that (a) she is within the class of persons that are protected by the law (e.g., a woman over the age of 40), (b) she performed her job competently (which she will be able to show because of the lack of progressive discipline), and (c) the company terminated her employment or she suffered adverse employment action (e.g., a demotion, cut in salary, reprimand, or termination).
However, the important point is that once the employee establishes a prima facie case of discrimination, the burden of proof shifts to the employer to demonstrate that the employee was discharged or was subjected to adverse employment action due to a nondiscriminatory reason. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668, 677-78 (1973); Maynard v. Bd. of Regents of the Div. of Univ. of the Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003) (following McDonnell Douglas to address race discrimination under Title VII). However, without documentation showing progressive discipline, this may be difficult if not impossible to prove.
Moreover, if the company seeks to commence progressive discipline with that employee, without having applied the same policies to all employees, the employee will most likely be able to show that the company treated her differently than other employees because of her protected class.
Therefore, the company may not be able to terminate the employee and, if it does, then may be subject to a charge of discrimination which it may not be able to defend effectively. As such, promulgation and implementation of comprehensive employment policies is extremely important for any company to effectively manage its employment relations.
If you have any questions regarding employment policies and procedures or other employment law issues, please do not hesitate to contact me, Santiago J. Padilla, Esq., either at (305) 824-2400 or via email.