Are Bad Policies Making You a Liability Target?

Risks come in all shapes and sizes – and more importantly from any direction.  Typically, we think of risks as those dangers or hazards that are coming at us from others, maybe employees, but usually from outside our organizations.  Sometimes, however, we may be our own worst enemy.

One way we cause ourselves to stumble is through poorly written policies.  Policies and procedures are the backbone of many organizations and embraced by HR departments.  Policies should be guides or even educational tools letting employees know what the company expects for a given situation.  The procedures should outline how the staff will do that.

However, there are times when a policy causes more harm than good.  In fact, it can put an organization in a dangerous situation, exposing it to more loss than is necessary.  Bad policies can increase the risk of liability at the worst end of the spectrum.  At best, a bad policy can create inefficiencies, be unproductive or simply misguided.  Somewhere in the middle could be employee dissatisfaction when a policy attempts to solve a problem that doesn’t exist.

A poorly written or thought-out policy is an unnecessary risk and creates increased liability.  This may sound dramatic, but is not as infrequent as you might think.  When an organization faces a lawsuit, the courts will quickly look to policy manuals and whether or not the company followed their own policy.  This means that if a policy is more restrictive or requires acts above and beyond typical case law, you increase the risk of losing a lawsuit.  

As a police officer, we were expected to know the law as well as policies for a wide-variety of situations and had to be able to act in seconds.  I was surprised at one point in my career to find that the policy for use of force was more restrictive than state law.  One example had to do with the use of deadly force to defend yourself or someone else.  Under state law, an officer would be justified to use deadly force to stop an attack that could cause death or serious bodily injury.  Per policy, an officer could not respond to an imminent attack involving serious bodily injury with deadly force.  That would mean that a suspect wielding a baseball bat swinging at your knees threatening to cripple you or a victim would not justify a deadly response per policy.  If an officer did face that situation and shot an attacker to stop harm to them self or another, the department could be sued for failure to follow its own policy.

Police pursuit policies are another potential hot topic.  An overly restrictive policy, as compared to local laws, could increase the risk of liability if it is not followed.  On the other hand, limiting pursuits may reduce accidents and injuries to innocent bystanders and, presumably reduce the chance of a situation that would generate a lawsuit.

You might be thinking that these examples have nothing to do with your own situation.  However, you might be in a position increasing liability inadvertently through other, more mundane, policies.  For example, if you have a policy of doing a background check on all new hires and the policy states that it is supposed to include a reference check.  The screening includes a criminal history check or a verification of past work history, but no one ever calls a reference.  In the event that an employee commits a crime and it is discovered that the company was not following their own policy, there could be an increased possibility of failing to act as promised.  

There is also the correlation to compliance issues.  For many different industries, there are compliance or accreditation concerns.  In health care, for example, most hospitals choose to be accredited through The Joint Commission.  One TJC requirement is that an organization follows its own policies.  It follows then, that the policies need to be realistic to ensure that employees do, and are, following the policy.  If a policy is overly cumbersome or not practical, then the hospital could be out of line and be found to be out of compliance during an audit or survey even though the policy exceeds the Joint Commission standards.

Policies and procedures are necessary and when well written help employees perform their jobs more effectively and to understand what is expected.  Good policies also help organizations protect themselves from mistakes and avoid legal pitfalls.  The wrong or poorly written policy can do the exact opposite.  Each policy should be carefully thought out, with the goals identified and any potential legal risks evaluated.

Eric Smith, CPP is the leading authority on organizational self-defense.  He has extensive experience in law enforcement as well as security management.  Eric is available for staff education and security awareness training as well as business coaching to help organizations provide safe workplaces.  To learn more visit 

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  1. Interestingly enough, our HR department is currently revising our handbook. Another area of concern is having a policy when one is not warranted. For example, medical marijuana laws are so unsettled; having a policy on it may in fact make us more liable to a lawsuit depending on how the laws change. We actually found to eliminate some policies and handle it on a case by case basis both reduces the rigidness of the workplace and allows us to make the decision based more on the individual situation.

  2. Overly rigid policies can be a problem and limit productivity and damage morale. I would point out that marijuana in the work place has been tested by various courts and is still illegal under federal law. A good policy restricting the use of any illegal substance or one that creates the risk of being impaired is a solid and safe way to go.