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Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
Well-crafted employment policies are a good thing: They inform employees of expected and appropriate behavior and help employers deal with workplace situations consistently and fairly.
However, sometimes employers can find themselves in murky waters or create problems by adhering to a policy too strictly, especially in situations where employees run afoul of a workplace rule by following their conscience or trying to act ethically.
Take, for example, a recent foiled robbery attempt at an AutoZone store in Yorktown, Va. Devin McLean, a 23-year-old employee, was fired at the end of November 2012 after he forced an armed robber to flee. During the holdup attempt, McLean ran out the back door when the robber brandished a weapon and forced the store’s workers into a restroom.
McLean retrieved a pistol from his truck, then reentered the store and confronted the suspect, who quickly fled the scene.
Managers at AutoZone’s corporate office reviewed the incident, and, two days after McLean thwarted the robbery attempt, they discharged him for violating the company’s strict no-weapons policy. AutoZone’s decision to fire McLean drew harsh criticism nationwide and created a public-relations crisis for AutoZone.
After dismissing him, AutoZone released a brief statement, saying company officials had considered his case carefully but, ultimately, decided to let McLean go because, while no one was injured in the incident, other attempts to stop robberies at other AutoZone locations had resulted in injuries to customers and employees.
Look Beyond ‘Zero Tolerance’
The situation has generated discussion among HR experts and business leaders about firing employees who may have done the right thing but violated corporate policy. The AutoZone case and similar examples demonstrate a basic point that, no matter how well-crafted a policy may be, employers simply can’t identify or envision every possible scenario or mitigating circumstance that can lead to a policy violation.
“No matter how well-meaning a policy may be, it’s impossible to create a policy that addresses every possible situation,” said Lorene Schaefer, Esq., a mediator and arbitrator at OneMediation in Atlanta. “Zero-tolerance policies leave no wiggle room and can create situations that just don’t turn out well for anyone involved.”
Schaefer says that providing leeway in a policy for what she called “the governor’s pardon” is a good idea. Still, the business must have a strong and fair review policy in place that is consistent and that treats all employees equally.
“Companies hire and pay executives and managers to exercise their judgment and to make sound business decisions,” Schaefer said. “And the decision to fire someone who may have acted with good intent is clearly a business decision. So why wouldn’t a company entrust their leaders to make these decisions, instead of tying their hands by creating policies that don’t provide any flexibility?”
Although AutoZone officials stated they had a strict no-weapons policy in their stores, the review process that led to McLean’s termination is unclear. Sources for this article chose to speak about best practices in general and weren’t referring to the AutoZone case when expressing their opinions.
“I don’t know the particulars of the AutoZone case at all, but I do know that the best practice when writing a policy is to include flexible language,” said Judith Lindenberger, president of the Lindenberger Group, an HR consulting firm in Titusville, N.J.
Lindenberger, who has helped develop hundreds of employment policies during her HR-management career, said the best approach is to use language that gives employers options. Words that imply that choices can be made in certain situations are very helpful. For example, conditional words like “may” or “could” work well, she said, and can avoid tying an employer’s hands.
“It’s much better to include something like ‘violation of this policy may (or could) result in disciplinary action, including termination of employment,’ ” Lindenberger advised. “If you use language such as ‘violations will result in termination of employment,’ then you’re dealing in absolutes, and that can possibly create problems and tough situations later on.”
All the sources interviewed agreed with Lindenberger and said that allowing for the possibility of review and consideration of mitigating circumstances not only makes good business sense; rather, it can increase morale and boost employee engagement.
“If you treat and respect employees well and expect them to act like adults, then they will respond favorably,” said Barbara Mitchell, managing partner of The Mitchell Group in Vienna, Va. “Employees often view policies that seem to be arbitrary or too rigid as unfair and ill-conceived. And complying with these kinds of policies can be very tough because you just cannot account or foresee every possible situation or scenario.”
The best approach, Mitchell and the other sources said, is to create reasonable and practical policies and then communicate and fully explain the reasons for them. “If you show that there are good reasons to enact a policy and that you’re taking care to ensure the policies are applied fairly and consistently, then employees are more likely to accept and abide by the policies,” Mitchell explained.
Consistency is the key here, and treating employees differently under the same policies can generate ill will and, possibly, legal liabilities.
“Once you implement a policy, then it’s crucial to make sure it is applied fairly and consistently to everyone in the organization,” Schaefer said.
Take Time Before Disciplinary Action
All the sources agreed that an organization’s HR department has to play a key role when reviewing policy violations and possible disciplinary action.
“HR has to be involved in this process right upfront,” Lindenberger said. “Any review process for a policy violation has to begin in HR. Once all the information is gathered and the situation assessed, HR is usually in the best position to recommend what action should or shouldn’t be taken.”
Any disciplinary action, especially employment termination, should be considered carefully. Managers can act on impulse and fire someone on the spot, which often causes problems for employers. For example, in the summer of 2012, Thomas Lopez, a 21-year-old lifeguard, was fired after he left his post to save a drowning man. The man was swimming in a section of the beach that was not patrolled by lifeguards.
Lopez rushed to save the struggling swimmer and pulled him to safety. Another lifeguard moved over to watch Lopez’s station. After Lopez was deemed a hero, his employer, Jeff Ellis Management, fired him for abandoning his lifeguard station. Harshly criticized for its action, the company reversed its decision and reinstated Lopez within two weeks. The lifeguard, however, refused to return, saying he would never work for the company again.
Jeff Ellis, the company’s CEO, told reporters later that he did not agree with the decision to discharge Lopez and that Lopez’s supervisor did not consult with him.
“Many of these kinds of situations can be avoided by careful deliberation and thinking through a problem,” said Mitchell. “This really makes good business sense, because once an employer loses the trust and respect of its employees and its community, it’s a very tough thing to get back.”
Bill Leonard is a senior writer for SHRM.
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