Putting Humanity into HR Compliance: Consistency May Not Be Worth the Costs

Jathan Janove, J.D. By Jathan Janove, J.D. December 3, 2018
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Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column. 

Human resources professionals pride themselves on consistency: consistency of policy, implementation, documentation and treatment of employees.

In my first column, I listed consistency as a critical HR checklist factor.

Yet can consistency be carried too far? 

'A foolish consistency is the hobgoblin of little minds.'—Ralph Waldo Emerson

During my years as an employment lawyer, I sometimes felt HR professionals took an overly rigid approach to consistency, missing the forest for the trees. 

The question "What's consistent with policy and past practice?" would supplant "What's the right thing to do?" 

HR professionals most often cited the legal system as the primary reason for rigid adherence to consistency. 

Yet, in my experience, employers who do the right thing based on fairness and values instead of relying on the most consistent thing based on fear of claims have nothing to dread about the legal system. 

Tim Conner, SHRM-SCP, is senior vice president of HR and team services for Associated Food Stores in Salt Lake City. At his company, investigations begin with an examination of the organization's beliefs. "We start with our core values and service standards as the benchmark of what the right thing to do is. Our HR team uses core values and standards in their decision-making. It may not provide for absolute consistency," he said, "however, it does ensure a consistent means of filtering our actions and behaviors." 

Dan Grinfas, SHRM-SCP, counsel at Buchanan, Angeli, Altschul & Sullivan in Portland, Ore., believes HR clients are sometimes overly concerned with consistency. "What I hear repeatedly is the worry that doing something new or different in a particular situation with a particular employee will set a 'precedent' that forever more binds the company. 

"And that's not the case, particularly in a nonunion setting. I explain that it's OK to deviate from standard practice in special circumstances, so long as you document the reasons for that deviation," Grinfas said. "The company can later demonstrate its legitimate reasons should a future employee say, 'Why did you do that for Bob and not for me? I think it's discrimination!'

"I recently took a call about an all-star employee who had been with the company for seven years and was asking for an unpaid, three-month sabbatical to pursue a personal interest. The company didn't want to lose this valuable employee but didn't have an established sabbatical policy and worried about setting some new precedent. I suggested they could grant this request [as part of] their general personal leave of absence policy under which they had retained discretion, and that they should just internally record their reasons for approving it in this special case without even needing to characterize it as a sabbatical." 

Monica Whalen, J.D., former president and CEO of the Employers Council legal services firm and now an executive consultant in Salt Lake City, offers this advice to HR professionals: "Do not blindly jump to conclusions with a mindset of, 'This is what the policy says, therefore we must do X.' That can lead to unreasonable and inhumane decisions in certain cases.

"HR has flexibility to weigh the circumstances and decide what is best, even if it deviates from policy or past practice—as long as the decision is not based on a protected class such as race, age, sex, etc. 

"HR professionals should take a more thoughtful, nuanced look at the facts to make the best decision. Consider length of service, work record, needs of the business and other factors. You are not handcuffed by what is written in a policy manual. Think for yourselves and apply fairness."       

Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to JathanJanove@comcast.net.

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