By Stephen R. Smith, Ph.D., J.D.
Business is not a science; it is not susceptible to experiments that can be controlled and replicated. Everything in business is too unpredictable for that – every business, employee, product, market is different and keeps changing.
– Margaret Heffernan
Small and large businesses usually vary in terms of resources, money, and time. Still, all businesses—whether small or large—must hire employees to run the daily operations. Likewise, it follows that those employees must know what is expected of them and what they will be accountable for in their new position. In large businesses, a Human Resources (HR) department is responsible for developing and implementing personnel policies. In small businesses that cannot financially support a HR department, the responsibility usually falls upon the business owner. In either situation, an employee handbook or a policy and procedure manual is a common communication tool between the business and the employees. A comprehensive employee handbook should clearly state the employer’s expectations of the employee, and define what they can expect in turn from the business. It could also describe the legal obligations of the business, and the employees’ rights. Unfortunately, not every employee handbook or policy and procedure manual is comprehensive enough to cover every issue.
It would be naïve to think that all employees think like owners. Although, it would be desirable if all employees considered how their work related actions affected the business, my experience has proven there is usually at least one exception. The following exceptions demonstrate the importance of a comprehensive employee manual.
“I didn’t steal the parts I just threw them away”- Employee X
In order to give notice to all employees that theft was an offense that could trigger termination, our employee manual contained the following excerpt:
Employees are expected to support ‘Company XYZ’ policies, philosophy and the established code of conduct. Actions considered contrary to this code include displaying a negative attitude or intentional deceit to customers or supervisors; insubordination; willful damage to ‘Company XYZ’ reputation or property; engaging in ‘Company XYZ’ -competitive work on personal time; use, distribution or sale of illegal drugs, intoxication; theft from ‘Company XYZ’ or employees; storing, carrying or using weapons on ‘Company XYZ’ property; unsafe/reckless operation of equipment, etc.
Naively thinking that this policy would cover all instances of employee theft, the following occurred. Employee X, the company delivery van driver, was tasked with delivering customer-owned product to the customer on a late Friday afternoon. After the anticipated delivery, it was understood that Employee X would be done for the day and was not expected to return to work until the following Monday. On Monday, the customer called looking for the product. After consulting with Employee X, we assured the customer that the product was indeed delivered and we had a signed proof of delivery (POD), although the receiver’s signature was illegible. Later, the customer insisted that the product was never delivered and demanded compensation for the product. A subsequent investigation showed that the driver had not delivered the product but instead had “stopped for a drink” and the customer was closed when he finally arrived at the receiving dock. Fearing he would be reprimanded for his failure to make the delivery, he decided to forge the illegible signature, insist he made the delivery, and then throw the product away. His actions resulted in his immediate termination. However, what happened next demonstrates the need for a comprehensive employee policy. After termination, Employee X filed for unemployment benefits. After a hearing, those benefits were granted because the company failed to give Employee X notice that theft from a customer was also a terminable offense. Subsequently, the company modified the policy concerning theft as shown follows:
…theft from Company XYZ, employees or customers…
The failure to include ‘customers’ in the section of the employee manual concerning theft enabled Employee X to obtain unemployment benefits that otherwise he would not have been entitled too. The next example involving perceived sexual harassment also demonstrates the need for comprehensiveness.
“I wasn’t sexually harassing her I was just asking her out”- Employee Z
It is important to note that harassment is in the “eye of the beholder”. What might be acceptable to one worker might be offensive and unwelcome to another. Every employer must realize that sexual harassment by another co-worker in the workplace must not be tolerated by employers. However, isolated or minor incidences that are not serious may not give an employer legal grounds to terminate an employee. Office romances are not unusual but, what about the situation where a co-worker insists on making advances when those advances have been previously rejected? In other words, when does persistence turn into harassment?
Daily, for over a period of a few weeks, Employee Z approached a co-worker and asked her to go out on a date. These advances were first met with a cordial “thanks, but no thanks” response. However, after numerous advances the co-worker began to feel harassed and reported the situation to her supervisor. The supervisor immediately met with Employee Z and reminded him that the company had a policy concerning sexual harassment. Which was as follows:
Company XYZ prohibits discrimination or harassment related to age, sex, race, color, religion, national origin, disability, sexual orientation or other reasons. Sexual harassment includes verbal, visual or physical conduct of a sexual nature, requests for sexual favors and sexually degrading or suggestive communications. An employee who is determined, after investigation, to have engaged in discrimination or harassment will be subject to immediate disciplinary action up to and including dismissal.
Employee Z insisted that his advances did not fall under the policy and therefore were not harassment. Company XYZ explained to Employee Z that persistent advances could be interpreted as harassment and he must stop or face termination. Fortunately, Employee Z did stop. To prevent future confusion the following was added to the employee handbook:
…conduct of a sexual nature, unwelcome sexual advances, requests for sexual favors…
The failure to include ‘unwelcome sexual advances’ in the section of the employee manual concerning harassment nearly resulted in the possible termination or resignation of key employees.
As demonstrated above, comprehensive employee handbooks should be an indispensable tool to any business, whether the business is large with hundreds of employees or a small business with only a few employees.
