Why do businesses and governmental entities need formal written policies?
Policies serve to:
- standardize operations and reduce the risk of unwanted events;
- ensure compliance with objectives;
- adhere to legal rules and regulations; and
- hold employees accountable.
The MBM Law attorneys partner with employers to develop policies in compliance with federal, state, and local employment laws in order to avoid costly penalties and fines. Contact us to discuss your legal needs.
Creating Effective Policies for Business Success
Adopting a policy can sometimes prove to be a double-edged sword if it is not carefully crafted, communicated to employees, enforced, and uniformly applied. Frequently, employers do not sufficiently inform and train employees about their company policies and/or may fail to consistently enforce their policies.
A poorly crafted policy, or failure of the entity or its employees to comply with an adopted policy, can result in financial losses, human resources problems, risks to health and safety, security breaches, adverse presumptions in litigation, and a damaged reputation.
Employee Handbooks: A Cornerstone of Regulatory Compliance
Below are some examples highlighting the importance of having, crafting, and enforcing policies correctly in your employee handbook:
Regulatory Compliance
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- The Equal Employment Opportunity Commission (EEOC) has adopted regulations that call for employers to take steps to address sexual harassment in the workplace, such as informing employees of their rights and the means to assert them. This is often addressed in an employee handbook.
Faragher v. City of Boca Raton Highlights Importance of Policy Dissemination
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- In 1998, the Supreme Court found that a municipal lifeguard employer was liable for an employee’s EEOC claim where, even though the employer had a handbook and written policy in place, “the city failed to disseminate its policy against sexual harassment among beach employees.”
Avoiding OSH Act Fines: The Importance of Workplace Safety Policies
Below are some examples that highlight the importance of workplace safety policies under Occupational Safety and Health Act.
Failure to Train and Enforce
- OSHA annually reports numerous penalties against employers for failure to adopt workplace safety policies, and for failure to train and supervise employees regarding workplace safety policies.
Does OSHA Apply to My Office Workplace?
- Yes, certain provisions of the Occupational Safety and Health Act apply to any person engaged in a business affecting commerce that has at least one employee.
Poorly Crafted Policies
- An example of a tricky policy to craft and follow is OSHA’s regulation adopted in 2001 requiring that employers “establish a reasonable procedure for employees to report work related injuries and illnesses” (29 C.F.R. § 1904.35). Two employers that adopted injury reporting policies for their employees were then sued for taking retaliatory action against workers who reported an injury, as their injury reporting and safety incentive policies and practices were found to incorporate an unreasonable and retaliatory disciplinary element. In its final rule adopted in 2016 OSHA clarified 29 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. In 2018 OSHA issued an interpretive memorandum further clarifying that this policy does not prohibit safety incentive programs, or post incident drug testing, if they are for the legitimate purpose of promoting workplace safety and health.
MBM’s Human Resources Legal Team has extensive experience counseling and guiding employers on all areas of policies and procedures to keep your business compliant. We’re here to help!
The Importance of Clear Document Retention Policies
Here are some examples of records retention policies and why they are important for businesses to follow.
Following Document Retention Policy Not Inherently Wrongful
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- In an unanimous decision (Arthur Andersen LLP v. United States, 5444 U.S. 696 (2005)), the U.S. Supreme Court reversed a criminal conviction of accounting firm Arthur Andersen for destroying an estimated two tons of Enron-related papers a few weeks before the SEC launched a formal investigation. The court held that “it is not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances,” as at the time, the company was not on notice of pending or anticipated litigation and was not the subject of a government investigation (at such point the business must preserve relevant records regardless of its retention policy).
Lost Footage, Presumed Liability: Why Video Retention Policies Matter
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- Retail establishments frequently see slip and fall and security incidents that result in injury or damage to property. Accordingly, many install video surveillance systems in public areas, and adopt policies regarding retention of footage when an incident is reported. There are many cases where the failure of an employee to follow the employer’s written video footage record retention policy was raised in an effort to create a presumption that the video evidence, if not destroyed, would have supported the plaintiff’s claim against the retailer. In the case of Gonzalez v. Target Corp., “Target’s own internal policy to save all video footage 30 minutes prior and 30 minutes after any incident from all available cameras placed on it a duty to preserve additional video footage.”
Limitations of Governmental Immunity
When Local Government Policies Violate Civil Rights
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- In 1978 the U.S. Supreme Court issued an opinion in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), determining that municipalities, counties and other local governmental units can be held liable for violations of civil rights protections under 42 U.S.C. §1983 (which allows for punitive damages), when the plaintiff can show that a government policy or custom (or a policy of inaction) leads to the injury.
- Subsequent cases, such as Thompson v. City of Los Angeles, have held that a policy that was promulgated, adopted, or ratified by a local governmental entity’s legislative body unquestionably satisfies Monell’s policy requirement.
Choosing MBM Law to Help Mitigate Business Risk Through Policy
These examples illustrate that there is more involved in the effective adoption of a policy than simply placing some paper behind a tab in a binder. MBM Law can assist with identifying policy needs, crafting effective policies, and employee training.
