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The Fairness Game —Fiorenza

March 2008

We all know that the workplace has become a tremendously regulated environment. Employment law issues are not only increasing in complexity, but more and more attempt to regulate an employer’s subjective judgment rather than merely mandate compliance with a precise set of rules. Early employment laws established minimum wage standards, hours of work rules, and thresholds of workers’ compensation and disability insurance. These were relatively simple “yes” and “no” rules.

As time passed, employment laws began to invade the realm of employer decision-making and activity in the imprecise arena of human interaction. Anti-discrimination legislation and the case law that interpreted and expanded its scope, require an employer to police the attitudes and conduct of its managers and employees.

Today, anti-discrimination/anti-harassment legislation is beginning to give way to the even more imprecise and difficult-to-manage concepts. Some states are now considering legislation regarding the emotional impact of work-related issues on individuals and even the need for the employer to ensure basic civility between employees.

As employment law obligations move further away from mere compliance with a set of rules and more associated with the regulation of human interaction in the workplace, managers will have to respond by incorporating the lessons of the fairness game into everyday management.

What does this have to do with monkeys? You’ll see.

An effective way to both minimize the risk of employee lawsuits and to enhance the overall human relations environment is to think of the concept of workplace fairness in two distinct parts: “legal fairness” and “perceived fairness.”

Legal fairness: Employment law of today’s regulated workplace is a reflection of legal definitions of fairness. However imprecise, the statutory and judicial framework of harassment law, labor law, employment discrimination law, the Family and Medical Leave Act, and the like, are expressions of prevailing societal opinion as to what is fair in the workplace. Seen in this way, it is essential that employers develop compliance tools and protocols that are responsive to the employment law definition of fairness.

Managerial policies, supervisory training and other compliance protocols should be designed to give managers the tools they need to evaluate whether workplace decisions are legally fair or unfair. Managers must learn that all personnel decisions—whether it’s hiring, assignment of duties, employee evaluation, discipline or discharge—must be made solely based on legitimate job-related necessities and not the legally protected personal characteristics that form the basis of employment law litigation (e.g., based on race, religion, age, disability, etc.). This must become second nature to them.

The best way we have found to ingrain this mindset in managers is to implement standardized practices for all phases in the employee life­cycle: recruitment, hiring, everyday management, employee evaluation, and discipline and discharge.

Under this model, for example, a supervisor’s documentation of workplace incidents and events becomes more than a detached process of recording what happened and when. Documentation becomes the supervisor’s chance to prove that although something bad may have happened to an employee, the decision reached was fair in the context of applicable legal definitions, as well as the compliance protocols associated with same.

Don’t worry. We’re almost to the part about the monkeys.

Perceived fairness: Efforts to create workplace fairness cannot end with legal compliance. While such an approach may reduce an organization’s legal risk and also offer some useful management tools, it focuses more on the expensive and frustrating process of legal defense than on the proactive process of risk avoidance and positive management. And so, the second aspect of managing fairness in the workplace demands an organizational commitment to moving past compliance standards and closer to the standards of perceived fairness in all aspects of organizational activity.

Monkeys Play for Grapes

A few years back, a group of behavioral scientists conducted an experiment with a group of monkeys. They trained the monkeys to hand a scientist a rock in exchange for a cucumber chip. This became their routine over a period of time. The scientists then began giving a different reward to a select few monkeys. Those select few were given the highly prized reward of grapes for performing the same task as the monkeys who received the less-valued cucumber chips.

Observing this change, the monkeys who did not get the grapes began acting out. They would throw the cucumber chips away without eating them, they wouldn’t hand the rock to the scientist, they would ignore the scientist all together, etc. It just wasn’t fair that some worked for grapes when others had to settle for cucumbers.

These results suggest that the desire for basic fairness is at the center of all social interaction, not only among humans, but also among our closest biological cousins. Many theorize that it is, in fact, a “hardwired” trait in human beings—part of an ingrained survival instinct relating early human survival to the need to share societal resources. Assuming this theory is correct, employers would be well-advised to avoid even the appearance of “playing favorites” in all aspects of employee management.

Think about your own experience. If a manager socializes with one group of employees and not another, is the team more likely to be cohesive or fragmented? When one worker sees another “get away” with misconduct, what is the response? When one employee gets a coveted assignment, how does the other employee react? If two employees working the same job are paid differently, what happens?

Managing to achieve perceived fairness among employees is not an easy task. It requires managers to be as concerned about their employees—and their perceptions—as they are about getting a job done for that important customer. Managers must be positive role models for their employees, both in terms of skill and integrity. In other words, they need to know their employees’ jobs as well as the employees and demonstrate a highly ethical approach to all aspects of their professional and private lives.

Employees are less likely to take direction from someone who “doesn’t know what they are talking about” or someone whose personal life is “so messed up” they aren’t worthy of respect. Managers must have good communication skills; be willing, patient, skilled listeners; and clear, concise, non-threatening speakers and writers. In short, managers must become good leaders to achieve this level of fairness.

At work, as in all other interaction, employees remain social beings with an ingrained sense of fairness. This sense must be satisfied to avoid unnecessary and destructive conflict. Give your managers the tools they need to comply with the law, but also help them to become true leaders. Both approaches are needed to achieve a truly fair and successful workplace. PI

Nicholas J. Fiorenza

About the Author
Nicholas J. Fiorenza is managing partner of the employment law firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., and long-time association counsel to the PIA and its members. He is also president of Delacroix Consulting Group, the HR consulting component of the law firm. For more info, visit www.ferrarafirm.com .
 

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