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When workplace ‘zero tolerance’ policies go too far

  • Author: Lynne Curry
    | Alaska Workplace
  • Updated: August 6, 2018
  • Published August 6, 2018

The employer called me a month after they created new personnel policies. Understandably shaken by the many incidents of workplace violence, and after two employees got into a scuffle in their warehouse, landing one in Urgent Care, they issued a zero tolerance for violence policy.

Last week a company vice president shoved an employee after both had too much to drink at an evening function. A dozen employees witnessed the incident. The CEO called me and asked, "He's been with our company for 20 years. We don't want to fire him. What now?"

"A policy you don't enforce isn't worth the paper it's written on," I responded. "Your best option – realize you created a policy that locked you in and rewrite your policy to give you necessary discretion."

Here's what you need to know:

While some employers value zero tolerance policies for the clear message they send and how easily they can be enforced, these policies have both benefits and drawbacks.

Zero tolerance policies let employees know their employer takes problem behavior seriously and also establish clear-cut rules, so employees know that no manager can hold him or herself "above the law."  Employers often use these policies to outlaw drug use, sexual harassment, fraud and racial discrimination, and often institute them after a painful lesson. When Texaco Inc. settled a highly publicized racial discrimination lawsuit, it paid the plaintiffs $176.1 million, and created a zero tolerance policy against racial discrimination.

A "no tolerance for violence" policy allows employees to feel safer at work. Last week, I wrote about the North Slope Borough's policy that, while not zero tolerance, enabled it to fire an employee whose threats alarmed others, despite the employee's protected status under the Americans with Disabilities Act.

But what does zero tolerance for violence, sexual harassment or another problem mean? One shove and you're out despite 20 years of exemplary work? One stupid joke and you lose your job?

In 2012, AutoZone fired an employee who, during an armed robber, snuck out of the store, grabbed a legally registered gun from his car and came back in to yell "freeze" at a robber pointing a gun at his manager's head as his manager kneeled in front of a safe.  Despite the employee's heroism, AutoZone management adhered to their zero tolerance for weapons policy and fired the employee.

Employers also falsely assume zero tolerance policies give them the right to immediately fire employees who breach them, without risk.  Managers may think a zero tolerance policy eliminates the need to investigate and offer due process. Not true. If an employee sues for wrongful termination after breaching a zero tolerance policy, juries, courts and regulatory agencies may conduct their own assessment into whether the dismissal was fair.

Further, zero tolerance policies may cause employees to not report problems, they fear a single violation may cost a coworker a job. "We recommend training a zero tolerance policy only for situations the employer just can't tolerate, such as proven harassment, racism, fighting or positive illegal drug use," says Avitus Regional HR Director Ryan Braley. "Otherwise, leave yourself wiggle room."

Here's what I told the CEO – "If you keep your policy as is, you have to enforce it. You can, however, admit to your employees that you made a mistake when you drafted a blanket zero tolerance policy. You can then write discretion back in to your policy, and state that termination may result after management weights all factors. While you don't necessarily need to fire your view president, he needs stiff discipline for drinking so much that he used poor judgment and put his hands on an employee. That's assault. Your other employees need to know that he didn't get off scot-free."