Managers often confront workplaces rife with a history of unenforced policies and mistakenly believe that the solution is merely to enforce those long-ignored rules. Legally, the results of such efforts can be disastrous.
In Curry v. Menard, Inc., 270 F.3d 473 (7th Cir. 2001), a new manager tried to more strictly enforce the company’s cash loss policy. An employee’s drawer came up short three times in two months, so he terminated her. The appellate court found that her case warranted a jury trial: the history of lax enforcement predating the new manager, plus less-than-perfect enforcement by the new manager, constituted sufficient evidence of pretext. The employer settled a few months later.
What could the store’s management team have done differently? Watch more TV, especially the political news. In a world where management decisions are now second-guessed by courts and administrative agencies, perhaps there is an object lesson in watching our elected officials and candidates running for those offices. It doesn’t matter which side of the aisle: all follow the same playbook.
Let’s start with one gambit in the title of McCutcheon and Mark’s classic book on understanding the political game: Dog Whistles, Walk Backs, and Washington Handshakes: Decoding the Jargon, Slang, and Bluster of American Political Speech. Those in the political class never admit error or changing positions. Instead, a candidate or an official will be “walking back” that position.
Why is this technique popular for political leaders? Because it is better than all of the other alternatives: flip-flopper, liar, incompetent, etc. Why is this technique mandatory for business leaders? Because all of those prove pretext and give easy wins in court to employees. And that is a problem that is not limited to California.
For example, the NLRB reversed a hospital’s termination of a surgical center nurse who told her supervisor she “didn’t give a ‘fu—’ any more” and engaged in sex talk and profanity around “terrified” coworkers. Why? Because the hospital never properly “walked-back” its years of permitting profanity, off-color jokes and bawdy behavior, before that termination. Inova Health System, 360 NLRB No. 135 (June 30, 2014).
As every politician knows, walking-back is never easy. Yet, all use this technique. If in doubt, you can merely google the phrase “walk back” with the name of your most favorite or lease favorite elected official or candidate. So how do you apply this technique in managing employees? Here is a four-step plan to consider.
- Draft a short memo. It can be short, even bullet-points. The purpose is to make a public record of your intent to neutrally enforce policy for legitimate reasons. You can even use the phrase “we are walking back the past under-enforcement of this policy”.
- Get front-line supervisor onboard. Explain the problem to be addressed and emphasize that they must strictly enforce existing policies, regardless of how things have “worked” in the past. Make it clear that if they don’t, they will be disciplined. It only takes one noncompliant supervisor who permits lax enforcement to continue to create the evidence to allow courts and agencies to conclude that this disparate enforcement was a prextext for discrimination.
- Be bold. Walk-backs are public events. Redistribute and reemphasize existing policies in meetings with employees; explain the problems caused by the history of lax adherence to existing rules; emphasize that lax enforcement ends now. Give examples of what the policy prohibits and requires. Make the consequences clear but not unnecessarily draconian. If you aren’t prepared to follow through on firing anyone who forgets to clock-out even once, don’t threaten it.
- Enforce the policy strictly as explained. Any decisions to not apply the policy because of unique circumstances should be documented (again, bullet points are fine). This will be critical for you to be able to prove consistency months or years later when you are being pressed in preparation for deposition, motion for summary judgment, or trial.
Admittedly, this feels weird: taking business advice from politicians? It is, however, more image advice. Politicians live in a world where public scrutiny is constant. Their techniques for dealing effectively with that scrutiny have direct application in areas of business where equivalent public scrutiny is now de rigeur, like employees challenging employment decisions in court and with any number of state and federal administrative agencies.
Still dubious? Then consider Winston Churchill’s view: “Politics is not a game. It is an earnest business.”