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Keys to Fairness in Dealing with Employees
In the olden days, when employees felt they weren’t being treated fairly, they griped about it. Today, in matters of any significance, they sue over it. It may be that the fastest growing lawsuit in American law enforcement is a claim by an employee against his employer alleging that the employer has not been fair with the employee in one way or another.
Fairness is always a good idea but sometimes it’s legally required. Where state or local governments create, by force of law, a reasonable expectation of continued employment (as contrasted with “at will” employment), their employees consequently have Fourteenth Amendment protected “property interests” in their pay and career. In such cases, employees are entitled to due process of law in matters that could take their money or their job. Due process comes in two types: substantive and procedural.
Procedural due process involves things like rights to hearings and to receive timely notice of exactly what one is accused of doing wrong. Substantive due process involves fundamental fairness, which is just that. For example, when done for no good reason, treating someone worse than you treat someone else in matters affecting pay or the job itself is fundamentally unfair and illegal, irrespective of race or gender issues.
When such disparate treatment involves people of different classifications by race, etc., it is likely to be prohibited discrimination and more clearly illegal. Whether or not an employer’s actions are actually illegal, disparate treatment is a bad idea. This article identifies the keys to avoiding such problems.
Put On Notice
One kind of notice involves things like the right to hearings along with their time and place. Failures in this area can certainly lead to lawsuits, but this is not our biggest problem. Our biggest problem involves a much more subtle question. Have we put our employees on clear notice of our expectations of them, in particular of our requirements and prohibitions? If an employee has a “property interest” in his or her pay and job, and we are setting out to take away one or both of those things, we (the employer) must prove that the employee was on notice of the rule he or she is accused of violating. Said another way, disciplinary surprise attacks are fundamentally unfair.
So, if you don’t want your 37-year-old male officer dating your 18 year old female Explorer Scout, you need a rule prohibiting in-service personnel from dating Explorer Scouts. A rule prohibiting “conduct unbecoming an officer” will not suffice; it does not put employees on clear notice of the prohibited behavior.
Consistency is the cure for problems of unfairness and discrimination. The problem is often more subtle than it first appears. One might think that, if each of your sergeants is consistent and fair with their employees, you might be out of the inconsistency woods, but this isn’t so. Supervisors must not only be consistent with those they supervise, they must be consistent with each other. Achieving needed consistency among supervisors will require rules governing their handling of critical matters, like misconduct. One employee cannot receive a stern talking to for behavior that eventually causes another employee to be suspended or fired. Having mandatory rules regarding how supervisors are to handle certain things inevitably encroaches on notions of supervisory discretion.
Certain supervisorial discretions must be sacrificed at the altar of consistency, fairness and legality. At a minimum, we must have a rule requiring supervisors to document and report all misconduct up their chain of command. If we require only that major misconduct be documented and reported, there will be great inconsistency in deciding what is major and what is minor.
That doesn’t mean senior leadership should handle minor problems that should be dealt with at the shift level; it means the matter of consistency in handling misconduct must be monitored and managed to assure required levels of fairness. Until managers and administrators are aware of how misconduct is being handled by supervisors, that handling cannot be monitored or managed. Also, it is important that senior leaders know about minor misconduct. If an organization is teeming with minor misconduct, the culture is ripe for major misconduct and that problem needs to be dealt with by upper management.
In matters of employee discipline, “proportionality” just means that the (administrative) punishment must fit the “crime.” It would be fundamentally unfair to fire a long-tenured, stellar employee for being five minutes late to work one time. But how does an organization best assure that consequences of misbehavior are proportionate to the wrongdoing?
We are most likely to be fair with an employee if he is not our “favorite” or our worst “antagonist.” So, perhaps the appropriate disciplinary action for a particular rule violation should be determined with no particular person’s face in the frame, no particular butt in the chair at the end of the long table—without knowing whether it will turn out to be our fishing buddy or the person who used to date our spouse.
Initial determination of appropriate consequences could be made in the “cold” of absolute consistency and we could “warm” the decision ultimately by documenting and applying aggravating or mitigating circumstances, like prior record.
This system of discipline would pre-identify the presumptively correct punishment for each type and level of rule violation and would work as does “determinate sentencing” in the criminal justice system. Many agencies already do this by a classification system, sometimes utilizing a graphic matrix. One knows going in what they’re likely to get for a given type of misconduct; there will be no surprises.
Timeliness is an important part of fairness. Supervisors need to let people know on a timely basis when they’re not meeting expectations—they should not store up problems to be unwrapped later as a surprise package. This gives employees a chance to improve their performance and/or to fix their behavior, ideally before it becomes a bigger problem. Naturally, all such counseling should be documented.
Any disciplinary action that is forthcoming should be delivered as soon as the matter can be rightly decided. In disciplinary matters, we should get in and get out, pull the trigger or re-holster. Lengthy delay is unfair and reduces the effectiveness of punishment.
Ironically, one of the frequently recurring reasons for significant delay is to obtain legal review. In some agencies, major disciplinary actions require approval of city managers or the like, and sometimes even people like mayors. If they are to be involved, such players need to be impressed with the need for timely handling of these matters. Best would be personnel rules that spell these things out, including deadlines.
Even when not legally required, fairness is a good idea. If it cannot be delivered perfectly in every possible respect, it should at least be our goal in the critical area of misconduct and discipline. There is little more upsetting than being punished for doing what others do with impunity. The rules should not change at shift change, according to the idiosyncrasies of one’s supervisor. Officers should not have to find out what supervisor is working today to know how to be that day.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at firstname.lastname@example.org.
Published in Law and Order, Nov 2011
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