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 Real Workplace Issues |
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Welcome to the latest
installment
of "Real Workplace Issues," a newsletter dedicated to
providing our clients and friends with practical,
everyday employment law and HR
information. Many employers find the
landscape surrounding employee handbooks to be a
veritable "minefield" of questions and uncertainty. On
the one hand, employers must have an employee
handbook to legally protect themselves and their
companies. On the other hand, employers should
avoid using "legalese" and make their handbooks
user-friendly. Employee
handbooks should also be comprehensive, yet clear
and concise. This edition of Real
Workplace Issues will review the reasons to have an
employee handbook, the policies which should be
included in the employee handbook, and some
common mistakes and "pitfalls" to avoid along the
way.
A well-drafted employee handbook
has many benefits, including:
Legal Protection:
The most vital benefit of having an
employee handbook is that it often protects
companies from employees' legal claims. For example, in most states,
employment is considered "at will" - i.e., both the
employer and employee have the right to end the
employee's employment at any time, with or without
advance notice and with or without cause. It is
advisable (and in some states legally required),
however, to add a disclaimer in an employee
handbook stating that the employee's employment is
considered "at will," and that
the employee does not have a contract of
employment. This way, should the employee be
terminated, it will be extremely difficult for that
employee to claim that he/she had a
contract of employment and was wrongfully
discharged. Another area in which an
employee handbook can provide valuable legal
protection is sexual harassment. Employers are
allowed to make use of an "affirmative defense" when
one of their employees alleges that a manager or
supervisor has subjected him/her to a "hostile work
environment." Part of this defense involves the
employer demonstrating that it maintained an effective
anti-
harassment policy, and the easiest and most efficient
way of doing this is by being able to produce an
employee handbook with well-drafted anti-
harassment language. The successful assertion of
this
defense allows an employer to either reduce its
damages or avoid liability all together. Setting Expectations: An
employee handbook should clearly describe an
employer's policies. Doing so allows all employees to
gain
access to the same information, and allows
employers to set forth their expectations in a
comprehensible and consistent manner.
Guidance for Managers:
Employers can also use employee handbooks as
a way of providing managers/supervisors with
information on key management policies, such as
how to recognize the signs of substance abuse,
performance counseling and corrective action, and
interviewing and hiring guidelines. (Note: Since these
policies pertain exclusively to management, many
employers have separate versions of the employee
handbook prepared for their managers/supervisors
containing this additional information.)
Orientation and Time
Management: An employee handbook can be a
valuable orientation tool for a new employee who has
just joined a company. The handbook can describe
the background of the company and include the
employer's "mission statement," providing new
employees with a preview of their new
employer's "company culture." In addition, a comprehensive
employee handbook gives employees a source of
information to consult when questions arise which
can be easily answered without having to approach
management.
Internalizing Disputes: An
employee handbook should contain a policy which
describes where to go and whom to seek out in the
event that an employee has a problem or grievance.
Having such a policy prominently displayed in an
employee handbook stresses the notion that
employees should seek resolution to their problems
from within a company, as opposed to immediately
bringing in an outside lawyer or government agency
whenever a problem/disagreement arises.
An "employment at will" disclaimer,
an anti-harassment policy, and an internal grievance
procedure have already been mentioned as policies
which should be included in an effective employee
handbook. Other important policies include (but are
certainly not limited to):
Don't let
your handbook sit and collect dust! An employee
handbook should be a "living document," which gets
reviewed and updated frequently (at the very least
once every two years). This will ensure that the
handbook is both narrowly tailored to reflect your
company's policies and is in
compliance with state/local laws (which change
frequently).
Avoid making
your handbook too cumbersome. While an
employee handbook should be thorough and cover a
variety of important business practices and policies,
employers should avoid making their handbooks too
large and "unmanageable." One way of doing this is to
have a separate instructional manual drafted which
exclusively spells out
all of the employer's "internal procedures" (i.e.,
elaborate code of conduct policies, safety procedures,
and training information).
Avoid making
definite promises. Such promises might form the
basis of breach of contract claims down the line. In the
same spirit, avoid creating detailed policies which you
will have difficulty enforcing, or do not intend to enforce
at all.
Keep a copy of
your old employee handbooks. While employee
handbooks should be updated frequently, it is also
important to always retain a copy of your past
handbooks. Should an employee file a charge with a
federal/state/local human rights agency, the
investigator is going to want to see a copy of the
employee handbook that was in effect at the time the
incident in question occurred.
Get a signed
employee handbook acknowledgment form.
The "legal protection" benefits provided by having
an employee handbook are not going to apply where
no evidence exists that the employee ever received the
handbook or was made aware of the employer's
policies.
"One size
does
not fit all." Jury duty leave, military leave, work
schedules, rest breaks, and
meal periods are some of the many policies which
must
conform to state/local laws. Employers must be aware
of these laws and keep their policies in
compliance.
Don't
distribute an employee handbook you downloaded
from the Internet.
The most common mistake employers make
with regards to employee handbooks is downloading
one off of the Internet and using it as their own.
Oftentimes these handbooks are outdated, and not in
compliance with the ever-changing legal landscape.
In addition, these handbooks are not customized for
your industry and are not representative of
your "corporate culture."
In the contemporary workplace, it
is
critical that employers take steps to insulate
themselves from legal liability. Part of that process
involves having an effective employee handbook that
is in compliance with federal, state and local
employment laws. Whether you wish to update your
current employee handbook or have your first
handbook drafted, it is always advisable to seek legal
counsel.
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