One thing I’ve noticed as an attorney in private practice is that corporations have a very strange relationship with internal policies. I admit I only watch this phenomenon as an outsider looking in, but it can be quite fascinating. Considering the number of meetings, emails, phone calls and departments that one policy must travel through, it is amazing that any exist.
By no means do I want to make the process more difficult for you, but companies need to realize the importance of policy wording and implementation. Unfortunately, most companies do not come to this realization until after they have been involved in complex civil litigation where an internal policy was put under the spotlight.
The following are some of the primary ways a plaintiff’s attorney can use an internal policy against a company.
(1) An Internal Policy Can Give Rise To A New Legal Duty
If your company does business in Alabama or Maine, beware, because your internal policies could potentially create a legal duty. The Supreme Court of Alabama analyzed situations that addressed whether an internal policy could give rise to a duty of care if violated and noted they all applied to policies regarding public safety. See, Armstrong Business Services, Inc. v. AmSouth Bank, 817 So.2d 665 (SCt of Alabama 2001); Lance, Inc. v. Ramanauskas, 731 So.2d 1204 (Ala.1999); Collins v. Wilkerson, 679 So.2d 1100 (Ala.Civ.App.1996); Wal–Mart Stores, Inc. v. Tuck, 671 So.2d 101 (Ala.Civ.App.1995).
In Maine, it appears that an internal policy may be able to create a duty based on Coulombe v. Salvation Army, 2000 WL 33675663, but there is little case law on this issue.
(2) The Violation Of An Internal Policy Can Be Evidence Of Negligence
In the remainder of the country, courts generally admit evidence of an internal policy violation at trial as support that a company breached its duty and was negligent. This means that a new legal duty is not created, but the policy is still shown to the jury. Even so, in many cases the difference between creating a legal duty and just reviewing a policy as evidence of a breach of duty is completely lost on a jury. In other words, an internal policy violation is extremely harmful evidence for any defendant company.
The following are just a few examples of case law that discuss this concept:
Ramsey v. Yavapai Family Advocacy Center, 235 P.3d 285 (AZ 2010); Minch v. California Highway Patrol, 140 Cal. App. 4th 895, 907 (Cal. 2006); Pollard v. State Farm v. Mutual Auto Ins. Co., 200 P.3d 1080 (CO 2008); Pollock v. Florida Dept. of Highway Patrol, 882 So.2d 928 (FL SCt. 2004); Boyd v. Packaging Corp. of America, 664 S.E.2d 277 (GA 2008); Blankenship v. Peoria Park District, 647 N.E.2d 287 (IL 1994); Zdrojewski v. Murphy, 657 N.W.2d 721 (MI 2002); K-Mart Corp. v. Washington, 866 P.2d 274 (NV 1993); Byrne v. Collins, 77 A.D.3d 782 (NY 2010); Woods v. Ohio Dept. of Rehab. & Corr., 726 N.E.2d 547 (OH 1999); Schuenemann v. Dreemz, LLC, 34 A.3d 94 (PA 2011); Cleveland Regional Medical Center, L.P. v. Celtic Properties, L.C., 323 S.W.3d 322 (TX 2010); Holttum v. Ross Stores, Inc., 178 Wash.App. 1013 (WA 2013).
If you need more case law, or case law for a different state on this issue, please contact me.
(3) Policies Can Be Written So That They Create A Heightened Legal Duty
When creating a policy, it should not create a heighted duty from what is required by law. Sometimes people get a little over zealous in trying to create the perfect work environment, but when a policy requires more of the employees than the law, the policy is setting the company up for liability. Work with in-house counsel to ensure that your policies only require what is required by law.
If an internal policy creates a heightened duty and is violated by an employee, the jury will see that policy and chances are, your company will be held to the standard it created instead of the legal standard.
(4) If Employees Are Not Aware Of A Policy, What’s The Point?
The most well written policy is useless if employees are not aware of it. Making them aware does not require hours of expensive training. The policy can be emailed, posted, discussed at a regular meeting, or if necessary, training can be provided.
What goes hand in hand with this awareness is proof of receipt. If you cannot prove an employee received the policy or was trained, it is again useless. Have a sign-in sheet for the meeting that states a policy was discussed and distributed. If there is training, have the employee sign a form or log-in with an employee number to watch the training on-line. Then put the proof in the employee’s personnel file. That one piece of paper could be your best evidence when that employee turns hostile witness.
(5) Continual Training & Policy Implementation
Once the policy is written and distributed, your job is not done. Make sure all future hires and internally promoted personnel receive the policy and sign a receipt that it was reviewed. If training is required, ensure that it is given. Certain policies may even require on-going training such as annually or every other year.
Also do not forget to ensure that the policies are being followed and implemented at store level. The policy is useless if at deposition you learn that it was never followed by a single employee at store level. In that instance, it will be treated as if the policy never existed. Do not spend the time and money to create a policy if you are not going to enforce it.
Reminder: Different Attorneys Review Policies Differently
Most companies know enough to have their policies reviewed by counsel, but usually that evaluation is only done by a contract or corporate attorney, not a litigation defense attorney. Policy review by in-house counsel is an absolute necessity but it is highly recommended that your litigation defense counsel get involved as well.
When a policy becomes an the target of civil litigation, the person called upon to defend that policy is a litigation defense attorney. Having litigation counsel analyze a policy before it goes into effect could save your company a lot of headaches and money.
In my practice, I often review internal policies for clients, and do so free of charge. I suggest you have counsel do the same. Or better yet, call me!
Happy policy writing!
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