This is part three of five in our weekly series on Five Common Employment Law Mistakes, in which we discuss common pitfalls that employers encounter, and provide suggestions on how to avoid these mistakes. In this five-part weekly series, we are discussing the following topics:

1. Misclassifying Employees and Contractors

2. Poorly Managing and Documenting Employee Performance Concerns

3. Treating Similarly-Situated Employees Differently

4. Neglecting to Engage in the Interactive Process

5. Failing to Update the Employee Handbook

This week, we are discussing the importance of making consistent decisions and avoiding treating similarly situated employees differently.

Treating Similarly Situated Employees Differently

Another common issue that employers encounter is treating similarly situated employees differently or in an inconsistent manner. In many cases, an employee will make a request that has been made by other employees in the past. For example, an employee might ask to work during different hours than the regularly set schedule, or to take an unpaid leave of absence for several months. When presented with requests like these, the employer must consider its past practices and look at how they have treated employees who made similar requests in the past. The danger is that deviating from past practice may expose the employer to a claim of discrimination or essentially, unequal treatment. If an employer chooses to deviate from past practice, they should have a clear basis for how the present situation can be distinguished from past practice.

Another scenario in which this arises is when the employer wants to issue a policy that only applies to a subset of their workforce. For example, if an employer allows a subset of their workplace to work remotely, while other employees are required to work in person, the employer must be able to articulate legitimate, non-discriminatory reasons as to why certain staff can work remotely, while others cannot. Again, the danger of treating one group of employees differently from others, is that it exposes the employer to claims of discrimination. It is critical to have a well-articulated, documented basis for why such decisions are made.

While technically, it is okay to “discriminate” (i.e., distinguish) between employees, the distinction must be for a legal reason (such as to reward a hard-working and high-performing employee; or due to “grandfathering” in a past benefit that present employees do not have access to). Employers should tread with caution, though, whenever they offer something to one person but not others. This is another area where it is likely that employees will attribute an illegal reason to the practice. Similarly, this is another issue that employees frequently feel is unfair and thus are more likely to try and litigate.

We hope that this discussion about treating similarly situated employees in a consistent manner has been helpful. Please follow along for Part 4, in which we will discuss accommodations and the interactive process. Maier Law Group can assist with navigating these common pitfalls and proactively creating a healthy and effective workplace.

Read the rest of the series here:

Part One: Misclassifying Employees and Contractors
Part Two: Poorly Managing and Documenting Employee Performance Concerns
Part Three: Treating Similarly-Situated Employees Differently
Part Four: Neglecting to Engage in the Interactive Process
Part Five: Failing to Update the Employee Handbook

Author: Emily Harrington, Associate.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.