Thursday, February 9, 2017

“It’s not fair”

Watch this, and then let’s talk about the word fair.

Like Louie in the clip above, I tell my kids this all the time. “Why can’t I stay up an extra half-hour? She’s not in bed yet.” “Because it’s time to go to bed. Tomorrow’s a school day.” “But it’s not fair.” “Why can’t I have ice cream, too? He had ice cream.” “Because you weren’t with us; you were doing something else.” “But it’s not fair.” Life is not designed to be fair. Tough lesson for a kid. Heck, it’s a tough lesson for an adult, too.

Must the workplace be fair? What does the word “fair” even mean at work? Nothing in the law requires the workplace to be fair. It only requires that you treat similarly situated people of different protected groups similarly. Equality across protected classes, however, is not the same as fairness.

Consider the following, which I read on
Most adults have internalized a sense of fair play that we learned as small children. And when a situation is unfair, we feel there should be some accounting for it. Conversely, research indicates that if an individual feels that he has been treated with kindness, respect, and honesty, he is less likely to file a civil lawsuit. As a result, you should place a premium on good communication and fairness in your terminations.

There are exceptions to every rule. But, in general, a good termination should be foreseeable. If the termination is the result of ongoing performance problems, there should be a history of meetings and written documentation of the problems. No employee should find out that her performance is unsatisfactory for the first time at a termination meeting.
If society expects fairness, unfairness begets lawsuits, and members of the same fairness-expecting society will comprise the judges and juries that will decide the legality of your terminations, then some basis of fundamental fairness should ground your terminations.

What does fundamental fairness in the workplace look like?
  • Don’t ambush your employees. They should understand why they being fired via prior discussions, prior performance reviews, and prior discipline.

  • The punishment must fit the crime. Do you really need to fire the employee who is late for work occasionally? Maybe, if he or she has been repeatedly warned. But the first time? If the punishment far exceeds the misconduct, the employee will look for a reason for the mistreatment and unfairness, such as race, sex, age, or disability. Do not provide an impetus to look past the stated reason. Alternatively, a sufficiently serious offense (e.g., sexual harassment, theft, violence) may support a termination on the spot. Otherwise, however, employees should have an ample and bona fide opportunity to correct their misbehavior.

  • Have documentation to support your decision. Do you have a performance review, written warning, or other contemporaneous note in a personnel file to support your decision? If not, it’s best to wait until you do. And, no, this is not an excuse to create a paper trail after the fact. Documentation should be contemporaneous to the misconduct.

  • Be consistent. Do you handle similar disciplinary problems similarly and to the same degree? If not, those that suffer the worst will ask why, and they may do it via their attorney in a lawsuit.
To make this concept of workplace fairness even simpler, do unto your employees as you would have your employer do unto you. If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer’s favor. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would want to be treated (i.e., fairly), the jury will be much less likely to find in the employee’s favor.

And that result would be way better than fair.

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