The Lawletter Vol 38 No 6
The increasingly complex statutory and regulatory requirements imposed upon employers require that written policies be promulgated and maintained in order to avoid fines for noncompliance, exposure to liability from lawsuits, and punitive damages. Many federal laws, and an increasing number of state laws, require that employers promulgate and maintain written policies. Furthermore, it is no longer sufficient to simply pass out cookie‑cutter policies; to be effective, workplace policies must be precisely tailored and contain specific provisions required by the location of the workplace, the type of business involved, the number of individuals employed, and a host of other considerations.
A properly drafted and implemented written policy can be a valuable tool for employers. For
example, in EEOC v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013), the court noted the rule that an employer may avoid liability for punitive damages based on the actions of managerial employees by simply showing that it had implemented an antidiscrimination policy. Because the employer in that case had not made the modest investment in an adequate antidiscrimination policy, the court upheld an award of $200,000 in punitive damages. See also Dunlap v. Spec Pro, Inc., No. 11‑cv‑02451‑PAB‑MJW, 2013 WL 1397294 (D. Colo. Apr. 5, 2013) (to avail itself of the good‑faith compliance standard, and avoid vicarious liability for punitive damages in a Title VII action, an employer must (1) adopt antidiscrimination policies; (2) make a good-faith effort to educate its employees about these policies and the statutory prohibitions; and (3) make good-faith efforts to enforce an antidiscrimination policy).
In addition to insulating employers from potentially devastating punitive damages, properly drafted policies can help employers avoid liability entirely. In the following cases, employers were able to avoid liability for discrimination claims: Zakrzewska v. New School, 598 F. Supp. 2d 426 (S.D.N.Y. 2009); Chaloult v. Interstate Brands Corp., 540 F.3d 64, 74 (1st Cir. 2008); McPherson v. City of Waukegan, 379 F.3d 430 (7th Cir. 2004); Salazar v. U.S. Dep't of Justice, 98 F. App'x 623 (9th Cir. 2004); Talamantes v. Berkeley County Sch. Dist., 340 F. Supp. 2d 684 (D.S.C. 2004). In each of these cases, the employers had properly drafted, written policies prohibiting discrimination and setting out grievance procedures for resolving discrimination claims. Although a properly drafted policy can enable an employer, in many cases, to obtain summary judgment in its favor, a deficient policy may negate certain defenses and enable a plaintiff to survive summary judgment. Smith v. First Union Nat'l Bank, 202 F.3d 234, 245 (4th Cir. 2000).
In addition to policies prohibiting discrimination and harassment, employers should have written policies that include provisions covering wages and hours, benefits, leave, workplace safety, workplace conduct, and discipline. Most employers should also consider policies covering Internet and email use, recordkeeping, drug and alcohol use, and immigration law compliance.
Do your clients have appropriate and effective employment policies? The National Legal Research Group will provide a complimentary review and consultation regarding an existing employment policy, or an assessment to determine what policies are needed for your clients. To take advantage of this offer, you may contact us by email at firstname.lastname@example.org or by phone at 1‑800‑727‑6574. You can also fax an existing policy to us at 434‑817‑6570. You will receive a complimentary initial consultation with John F. Buckley IV, a nationally known author and authority on Human Resources and Employment Law.