Employee Handbook Do's and Don'ts

Employee handbooks provide guidance on interpersonal conduct between employer and employee, company culture and expectations, and legal policies and procedures.  The employee handbook can be used to bring together employment and job-related information which employees need to know. They are useful tools which need to be drafted with care as there are many legal ramifications. Although each business is different there are several core principles to keep in mind when it comes to crafting your employee handbook:

   Easy to Understand

Use plain language that is easily understood by the average employee. Courts are less likely to rule for the employer if the employee handbook is unclear.

For instance, many defenses in harassment claims hinge on whether the employer has a reasonable reporting mechanism to notify the employer of workplace issues. If an avenue to report inappropriate conduct is incomprehensible, courts are unlikely to consider the reporting mechanism to be reasonable, thus making the employer’s defense substantially more difficult.

   Outline Clear Reporting Protocol

The handbook should outline a clear line of reporting for the employee to follow. For instance, employees need to know the steps involved in how to request leave or accommodations - who to contact, their email address and phone numbers. Reasonable reporting mechanisms are not just important for an employer’s defense in a harassment claim, but for other claims as well. If the lines of reporting do not exist, the employer increases their risk of liability.

    Phased Approach to the Discipline Policy

Clearly state the procedures involved in the discipline policy. However, if the offense is severe then steps in the discipline policy may be skipped. By including a more flexible discipline process, employers are allowed more flexibility in assessing proper discipline while minimizing any claims of unfair treatment.

    Limiting Employee Leave

Courts do not look favorably upon employers who limit employee leave. The Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave per year. Employers also need to consider the implications of the Americans with Disabilities Act (ADA), which requires that an employer offer a “reasonable accommodation.”

What is the difference between FMLA and ADA?

The ADA applies to employers with 15 or more workers. The FMLA applies to all government employers (local, state and federal) and to private businesses with 50 or more workers within 75 miles (with some exceptions). https://adata.org/factsheet/work-leave

   Right of Employees to Discuss Employment Conditions

The employers cannot limit discussion of the terms and conditions of employment, including compensation. The National Labor Relations Act (NLRA) specifically protects these conversations as “concerted activity.” If an employer’s handbook contains language prohibiting these types of discussions, the employer can be found liable under the NLRA.

    State-Specific Provisions

Many employers do not include state-specific employment law provisions into their handbooks. Relying solely on federal laws, particularly with respect to anti-discrimination laws, can be perilous.

Some states protect a number of characteristics that are not federally protected. For example, Illinois law prohibits discrimination based on arrest records, whereas federal law may not. To minimize risk, employers need to be aware of the state-specific laws that impact their worksites and incorporate them into their handbooks accordingly.

    Drug Testing Policy

Employers should outline circumstances that may lead employees to be tested for drugs or alcohol.

The Occupational Safety and Health Act (OSHA) provides limits on drug testing. In addition, state law variants of OSHA can be more cumbersome, requiring confirmatory retests and limiting discipline in situations where the employee has voluntarily undergone substance abuse treatment, among other things.

Moreover, the penalties for failing to comply with OSHA and its state counterparts can be substantial, and being aware of the appropriate circumstances for drug testing (and possible disciplinary action) is crucial.

In addition, testing may raise issues under the state common law or applicable privacy statutes.

    Include Disclaimers in the Handbook

Many employees are at-will, meaning that they can be terminated for any reason at any time as long as it is not unlawful.

Employers should be careful to include disclaimers in their handbooks stating that any language contained in the handbook does not create a contract and is not intended to alter the at-will relationship.

If the handbook does not contain a disclaimer, there is a greater likelihood that an employee may be able to enforce the handbook as a contract and challenge a possible termination.

    Signature Acknowledging Handbook

Handbooks should contain an acknowledgement of acceptance for an employee to sign and date. The employee’s signature acts as evidence of the employer’s reporting mechanism. In employment litigation, the defense is in far better of a situation if the employer can show evidence that the employee acknowledged the receipt of the employer’s policies.

To remain in good standing an employer should have their employees sign an acknowledgment page each time the employer updates its handbook.

 Keep up with the Law

Keep up with current laws. Employers often allow their handbooks to become outdated. It is a good policy to consult regular legal counsel to make sure your policies are up-to-date.

Keep in mind there is no perfect employee handbook! These are but a few guidelines that can help avoid common mistakes and keep your company in good legal standing. There are many more considerations that pertain to each and every business.   Consulting legal counsel will ensure you are on the right path.

Source: Benefits Pro