“If you don’t have policies, then two things happen. First, you actually have to teach people what to do and how to do it. But wait, you’re supposed to do that anyway.” – Heather Bussing

There are two main reasons to have employment policies: to educate and to manage risk.

The trouble is that policies don’t do either.

Policies are Bad Teachers

Most employment policies are issued in a large manual on your first day of work, along with a bunch of other forms to sign and return. The manual gets dumped a drawer while the IT person is waiting to hook you up to the network. You mean to pull it out and read it, but you don’t. That’s because if you really want to know how things work, you go ask someone in the break room.

The other reason policies don’t educate is because they are written by lawyers who can’t even tell you how to find the bathroom.  Lawyers don’t know how things really work, or even how and when the policies get applied. They are there to come up with language that works with statutes and cases and that is designed to show to a jury if someone sues.

So policies get handed out at a time when no one pays attention to them, they are written by people who don’t know how the company really works, and they have very little to do with what happens.  So much for education.

Policies Increase Risk More Than Decrease Risk.

Lawyers write policies to protect companies from liability.  The main ones are EEO statements, At-will, Disciplinary, and Leave/Holiday policies.  Depending on the company, you often see Nondisclosure/Confidentiality, Health/Safety/Workers Comp., and various flavors of Code of Conduct.

First, the EEO and Wage Hour policies are also required to be on those giant posters on the back of the break-room door.  These are pure statements of law that every company has, and people may or may not pay attention to. (For example, law firms are one of the biggest violators of misclassification and overtime laws.)

Then, the disciplinary policies are almost always contradictory to at-will employment. If you have a progressive discipline policy that is required to be followed, you have just completely undermined your discretion to terminate at-will.  If you have a progressive discipline policy that is optional, then it is essentially meaningless and just increases the risk that someone will sue you for not following your own policy.  Semi-discretionary policies are for weasels.

If you have read your NDA/Confidentiality policy lately, it is so broad that if you actually followed it, you would not be able to talk to anyone about work,ever. And it undoubtedly violates Section 8 of the National Labor Relations Act.

Leave policies are never applied consistently because it is impossible.  Life happens. You can have all the policies you want, but some people get more leave than the specified amount, and some even get paid for it. That is exactly the way it should be. Treat people based on the the facts and circumstances–try to find a way to make it work for both the company and the employee. While laws and lawyers try to cover every exigency, life is way more creative.

Definitely let people know how to file a workers’ compensation claim. But get real. Creating a policy about workplace safety doesn’t keep people safe. You have to show them how to do the work safely.

Which brings me to social media policies. Telling people not to say mean things or act like an idiot won’t stop them from saying mean things and acting like an idiot.  Instead, you need to train them, explain that almost everything they do on social media is public, and show them how to effectively use the tools. (For the full rant, see Trash Your Social Media Policy.)

Unless it is required to be on a poster, or unless you can apply it in every instance without variance, you don’t want policies.  Your at-will policy covers it.  And if you don’t follow your policies to the letter, you will look like a liar in a courtroom.

But You Can’t Treat People Differently, That’s Discrimination!

No it isn’t. Companies treat different people differently all the time. Your paycheck is not the same as your colleagues’.  You don’t take the exact same vacation and sick days as everyone else in the company. You don’t do the same work as other people in the company.  The idea that you would treat everyone the same is ridiculous. And it’s not true.

Discrimination is an adverse employment decision based on a protected factor. It is a narrow band of protected/prohibited conduct.  You can treat people differently all night and day and never discriminate.

But don’t take my word for it. Read Jay Shepherd’s book Firing At Will. He also says to throw out your policy manual, treat people differently, and preferably like grown-ups.

Work Without Policies

If you get rid of policies, you will have to take responsibility for your decisions. Somebody has to say, “I looked at the situation and made the best call for the employee and the company based on the circumstances.”  It may be the line manager, or the VP of HR, or the CEO. And that is the right thing to do.

Fire people who don’t work out for the reasons it’s not working out. Reward people who are doing a great job.

If you give someone the responsibility to do something, give them the authority to actually get it done. Encourage communication. Concede, better yet, embrace the fact that there are many ways to do it right.  Allow for the fact that people screw up. And sometimes those screw ups are called innovation.

Which of your policies do that?