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September 15, 2022

Begin as You Mean to Go on…

A recent Fourth Circuit[i] case puts into stark perspective how important it is for employers to “begin as you mean to go on…” especially when it comes to enforcing company policies and procedures. Employers must remember that the protections and defenses afforded them under established policies and practices can be put at risk where regular deviations create new ‘usual and customary’ practices.

A West Virginia company learned this lesson the hard way when the actions of its supervisor – accepting leave-related communications via the Facebook Messenger app – were deemed to have established a new policy and practice for communicating leave-related information. After communicating with an employee via the app concerning the employee’s request and subsequent grant of leave to treat the employee’s serious medical condition, the company was not allowed to later support a termination via job abandonment on the grounds the employee failed to communicate the need for additional time off through human resources as company policy required.

To preserve the employer’s defense that it acted in accordance with its usually and customary practices, it must actually follow – in all situations – its usual and customary practices. Supervisory personnel must be trained to understand their role in protecting the organization by being aware of and following company policies and practices. However, training alone is not enough. The concepts and ideas that supervisory personnel are trained on must also be continually reinforced.

Best practices include some of the following:

  • When the opportunity presents itself (e.g., small group or one-on-one meetings) try focusing on key elements of specific policies to reinforce certain responsibilities.
  • Increase learning and engagement by finding ways to make policy/procedural reviews interactive (e.g., offer extra breaks or gift cards[ii] for correct answers)
  • Visual prompts can assist memory retention. Try using visual elements when you discuss policies and procedures to keep employees engaged and help with comprehension and memory retention.
  • Translate key policies and procedures to remove any language-related learning barriers.[iii]

[i] Roberts v. Gestamp West Virginia, LLC (4th Cir. 2022) 45 F.4th 726

[ii] Employers should seek outside counsel regarding the impacts of distributing gift cards to employees.

[iii] The California Fair Employment & Housing Act (FEHA) requires “any employer whose workforce at any facility or establishment contains 10% or more of persons who speak a language other than English as their spoken language shall translate [its anti-discrimination policies] into every language that is spoken by at least 10% of the workforce.”