Why am I last?? That's not fair.

As one of my favorite co-workers of all time, Bill Garrett, used to say, "A fair is a place where pigs get ribbons."

Fair treatment is a difficult concept to convey. What is fair to me? What is fair to you? Who is the judge?

In my opinion, the heart of all employment law is based on fair treatment. The Fair Labor Standards Act is a great example of this. It defines minimum wage, overtime, work hours, child labor rules, and what records employers must keep. This prevents employers from abusing their power and short-changing employees.

Title VII, ADA, ADEA, and the Equal Pay Act ensure that employers treat all employees equally, not favoring one sex, religion, race, national origin, age, etc. over others. Numerous state laws address these issues in many ways, with California leading the way. Some states specifically prohibit employers from terminating employees for lawful activities conducted outside of the workplace, while the employee is not "on the clock," and I think that is a great idea.

Companies hire employees for a purpose--to complete a task. Employees are hired to make widgets, to sell widgets, to provide great customer service, to make the widget makers coffee, etc. If the company could hire all robots and machines to do these things, then from a business standpoint, presuming the costs made sense, the company should do that. At the current time, that is not economically feasible, and I am glad that is the case.

Still, I think the idea illustrates the point. Employees must be functional with regard to the task they are supposed to complete. As you may have noticed in reading my blog, I believe that if the employee is completing that task in a satisfactory way, then it should not matter if his hair is long, her tongue is pierced, or he prefers the company of men.

Further, employers should not vary the way they treat employees based on those types of characteristics. There is just no business sense in it. If I have a white, male employee with short hair, a suit and a tie, who attends church twice a week, but who cannot meet his sales quota, and I have a black, male employee with dreadlocks, a t-shirt and jeans, who thinks religion is evil, but who consistently wins all sales competitions and sets new sales records, which one is more valuable to the company?

To be sure, I would certainly enforce the dress code of the company - if jeans are not allowed, then I would address it.

Still, I use the discrepancies to illustrate a point. It is not the person, his or her dress, or his or her behavior outside of work that should be of concern to an employer. Rather, it is a person's ability to perform the functions assigned by the employer.

As I write that, I hear a voice inside my head warning about outside behavior such as drug use or other unsavory behaviors that might negatively impact the company. "What if the employee uses drugs then goes postal," the voice says. My response is that (1) if you know an employee is using drugs then address it. All companies should have a drug-free workplace policy and procedures for addressing issues that even appear to be related to drug use. And (2), to the degree an employee exhibits behaviors that are concerning, the company should address those behaviors.

In fact, number 2 gets at the point of fair treatment. Employees are not robots. They have feelings, emotions, outside issues that get brought into work, and numerous other factors that impact their performance. Companies should give the employee an opportunity to succeed by addressing performance issues and offering support to overcome them.

A company I worked with in Florida had a good employee who got divorced and subsequently went on a drinking/partying binge. Her work showed the impact of that behavior. Instead of firing her, the administrator of the facility took her aside and addressed her performance. He went the extra step to ask her what was going on and to let her know, in no uncertain terms, that if her work continued at a low level, she would be terminated. The administrator granted her leave to get her act together.

The employee took some time off, got her life together, and came back. She continues to be employed by the company and is one of its top performers. Instead of losing an employee, the administrator gained someone who is loyal to the company. It cost him a couple of weeks of paid time off (which would have been paid to her if she was terminated per state law). The employee felt she was treated fairly, and it paid off for the company.

Fair treatment is not just about saving employees. The main benefit of fair treatment is in being able to defend employment decisions. Let's look at an example to illustrate this point. The laws protecting the example employee are in parentheses.

Let's say I have a forty-five year old (ADEA), Indian female (Title VII) with AIDS (ADA and potential FMLA).

She has had a history of tardiness and unexcused absences that are not accounted for due to any medical needs. We addressed her attendance issues per policy, offered her leave under the Family and Medical Leave Act (FMLA), and assisted as much as possible with the processing of that paperwork. We kept her medical information confidential. Additionally, we sought to find other ways to assist her with her tardiness, such as adjusting her schedule.

We documented each conversation and had her sign a copy attesting to the accuracy of the document. In the final conversation before termination, we noted that any additional incidence of tardiness or absence in the next 90 days will result in termination (again, this is per policy).

She filed a workers compensation claim after hurting her back when lifting a patient using improper procedure and not using the lifting device provided by the company. This occured 80 days after the final conversation before termination.

Her doctor put her on leave for a week. She was released to full duty and scheduled to return to work on the 8th day following her injury. On the day she was scheduled to return to work, she arrived 10 minutes late and was subsequently fired for violation of the attendance policy.

On the surface, attorneys would be salivating to get this case. You have an employee who is protected by the ADA, ADEA, Title VII, and state law regarding workers compensation retaliation. The proximity of her termination to her workers compensation claim could establish a prima facie (meaning "at first face") case.

However, if we can produce documents showing that we tried to assist this employee, spelled out expectations, and subsequently held the employee accountable, then the company would have a solid defense against any claims of discrimination.

In the example above, exposure could still exist if all employees were not treated consistently. For example, if we did not enforce the attendance policy with each employee, then this is likely acase of discrimination.

The main point is that by being able to show that you endeavor to treat employees fairly, taking into account their situations while holding them accountable for business needs, you will be able to defend your business decisions.

I want to spend a moment on what fair treatment is not. Fair treatment is not giving the employee what he or she wants. The most common complaint of unfair treatment I have received hinges on this belief. An employee wants something, the manager can provide it, but chooses not to, and does not give a reason for this decision. The employee believes that is not "fair" and contacts the human resource department to make it known.

Perhaps the manager did not grant the request because it would have caused bigger issues for the department. The employee did not know that, and maybe the employee did not need to know that. Regardless, it was not unfair that the request was not granted purely because the request was not granted.

Fair treatment is about being reasonable. Fair treatment is a mind-set by the employer that requires taking into account the needs of the business first and then the needs of the employee. Setting expectations is fair treatment because it gives the employee knowledge of the standards of performance. Providing the metrics by which performance is measured is fair treatment because employees know how they are being rated. Addressing problems as they arise is fair treatment because employees are not blindsided when the problems become too big. Holding employees accountable is fair treatment because employees know that you are true to your word.