Sarah Peterson, SHRM-SCP, PHRca
One of the most common questions we hear from clients is: “If I allow it for one employee, will I have to allow it for all employees?”
It is a reasonable question. Employers want to be flexible with employees and comply with the law, but they worry that approving one request may invite a flood of similar requests. This concern rests on the misconception that consistent employment practices require treating employees the same. Sameness isn’t consistency. And it isn’t good management.
If you’ve been a Silvers HR client for any amount of time, you’ve likely heard some version of the phrase, “Make sure you’re being consistent in your treatment of similarly situated employees.” And you may have wondered, “Okay…but what does that actually mean?”
Let’s break it down…
First, let’s start with “similarly situated.”
Simply put, “similarly situated” describes employees whose circumstances are alike in the respects that are relevant to the decision being made. This means determining whether employees are similarly situated depends on the circumstances, not simply who the employees are within the organization, and this evaluation must be made on a case-by-case basis.
Think of it this way: Rather than asking, “Are these employees similarly situated?” ask, “What do these employees have in common that is relevant to the decision I am making?”
Once you’ve identified the relevant similarities, the next question is: What does it mean to treat those employees consistently?
Merriam-Webster defines “consistent” as “free from variation or contradiction.” I especially like this definition because it highlights an important distinction: being consistent is about creating a predictable decision-making process, not identical outcomes.
In other words, consistency is in the process, not in the result.
To be consistent, you must apply the same decision-making framework. And the framework is determined by the question, “What will the decision be based on?”
The answer might include factors like the employee’s position, job responsibilities, the reason the request is being made, company policies, performance or disciplinary history, operational or client impact, and relevant legal requirements.
It is important to note that not every factor will carry the same weight in every situation. You will have to exercise judgement to determine which factors are most relevant to the decision. For instance, when deciding whether or not to approve an employee’s request for a schedule change, both operational impact and job responsibilities are important factors to consider but the operational impact of the schedule change might have a greater impact on your decision than the employee’s job responsibilities.
So, what does treating similarly situated employees consistently actually look like in practice? Take this common workplace scenario:
Imagine two employees in the same role, on the same team, have each separately violated the company’s attendance policy.
Employee A was 30 minutes late to work and did not notify the supervisor that he would be late. He was hired four months ago, has repeatedly arrived late, and has been counseled about the issue several times. He has already received a written warning for attendance.
Employee B was also 30 minutes late but notified the supervisor that he was running late. He was hired six months ago, is late for the first time, and has no prior attendance issues.
You’ve determined that your decision will be based on the following relevant factors; (a) the company’s attendance policy, (b) the employee’s attendance history, (c) impact on the team, and (d) the expectations of the position.
These employees appear to be similarly situated: they have the same job responsibilities and schedule, work on the same team, and are subject to the same attendance policy. But when you apply your decision-making framework, you see meaningful differences. Employee A has a history of attendance issues, has previously been counseled and disciplined, and failed to notify the supervisor. Employee B has no prior attendance issues and did provide notice.
Those differences do not necessarily mean the employees should be treated differently. They mean you have relevant factors to consider when applying your decision-making framework. If those factors are relevant to the decision, it may be entirely consistent to reach different outcomes.
The key is that you are not changing the rules for Employee A and Employee B. You are applying the same rules and the same decision-making framework to different sets of facts.
Same framework + Different facts = Potentially different outcomes.
Consistency isn’t about treating everyone the same. It’s about making sure your reasons for treating them differently make sense.
So, the next time you hear, “Make sure you’re being consistent in your treatment of similarly situated employees,” remember what we’re really saying:
Use the same decision-making framework when employees are in similar circumstances and let the relevant facts guide the outcome.