“We're all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box.” – Jerry Seinfeld
Employers often find it difficult to set and manage their expectations for employees. Like playing a board game, however, managing employees is markedly easier and purposeful when the rules are clear, widely read and consistently followed. Workplaces, like board games, operate smoother and more efficiently when everyone is aware of and familiar with the rules. And, like board games, people are best served to read the rules before beginning.
Employee handbooks serve as the rules and instructions in the workplace. While nearly all employers have policies that they follow either formally or informally, not all employers take advantage of the benefits associated with recording those policies and compiling them into a handbook that they can distribute to all employees at the outset of employment.
There are a few ways in which handbooks are unlike the rules of a board game.
Unlike game rules, handbooks can and should state that the policies can be amended at a later date. There are a number of reasons for this, including changes in the employer’s business and changes in the law. Employment law is a rapidly-changing field. Accordingly, unlike game rules, handbooks should be reviewed regularly to determine if revisions are needed. Likewise, the handbook can distinguish between types of employees and the rules applicable to those types. For example, an employer who has salaried employees and hourly employees may have different attendance, vacation and/or work schedule policies for each. In Monopoly, by contrast, each player collects $200 for passing Go regardless of whether they are the dog, the shoe, or the top hat.
Preparing an employee handbook requires careful consideration. Misstating laws or employer practices can lead to problems. A well-written handbook, however, can help set employee expectations, provide guidance for future problems, and limit employer liability. Because employee handbooks typically speak to a wide variety of topics, the best practice is to work with an attorney to prepare a handbook that best suits your business.
Some topics to consider when preparing your handbook:
- Mission statement. Describing the company’s mission or goals will help focus the employer’s task of drafting and enforcing work policies. It can also help create a shared purpose with employees and aid in interpreting policies if a dispute arises.
- Employment at will. Most employees are at will, which means there is no legally-enforceable employment contract between the employer and employee. An employer that is under the assumption its employees are at-will should include a clear disclaimer that the employee handbook does not constitute an employment contract.
- Written policies vs. actual practices. Your handbook should clearly set forth employment policies. To be effective, however, employers should follow those policies. In employment disputes, courts will examine an employer’s actual practices along with their written policies, so having a well-thought-out policy is unhelpful if the employer does not abide by the policy.
- Non-discrimination policy and anti-harassment policy. Handbooks should make clear that the employer will not tolerate any form of discrimination or unlawful harassment and that the employer will not retaliate against employees who report discrimination or harassment. Employers should consult an attorney regarding what types of employees are protected by federal, state and local laws and include appropriate statements about those protected classes. For example, while sexual orientation and transgender employees are not necessarily protected by federal law, many states and municipalities expressly provide coverage. Also, anti-harassment policies should contain at least two methods for reporting harassment. Furthermore, employers should expressly incorporate anti-harassment and anti-discrimination policies into internet and e-mail usage policies.
- Discipline procedures. Some employers use a progressive discipline policy. If an employer chooses to use a progressive discipline policy, employers should make clear that it has the latitude to skip levels of discipline if based on the individual circumstances and conduct at issue.
- Attendance. There are many issues to consider with regard to attendance policies. Is your company covered by the Family and Medical Leave Act (FMLA)? Does your attendance policy distinguish between excused and non-excused absences? How much vacation / sick leave / paid time off (PTO) are employees given? Are employees required to submit doctors’ notes to justify sick days? Does your state and local law permit a “use it or lose it” PTO policy?
- Standards of Conduct. While standards of conduct and employer expectations are helpful, the manner in which those standards are described could be problematic. For example, the National Labor Relations Board has found that some prohibitions on disrespectful conduct or offensive language could infringe on employees’ right to engage in concerted activity. Employees are entitled to discuss their wages, hours, benefits and working conditions even if it will sometimes result in speaking unfavorably about the employer, supervisors or co-workers.
- FMLA Policy if you are covered. If your organization is covered by the FMLA (50 or more employees within a 75 mile radius), you must include your FMLA policy in your employee handbook.
- Safe Harbor Policy. Employers are prohibited from making deductions from an exempt employee’s salary except in very limited circumstances. However, the Department of Labor (DOL) provides employers with an affirmative defense if an employer has a clearly communicated policy prohibiting deductions with a complaint procedure.
- Email and Internet Use. Again, an employer’s right to monitor employee internet and e-mail use will vary among states. However, where an employer does have the right to monitor use, such as in Missouri, employers should expressly notify employees that they have the right and will exercise their right to monitor information accessed or sent through the employer’s e-mail and Internet systems.
- Acknowledgement. All handbooks should contain a form that states the employee has received, read and understood the handbook. That form can be a separate page which is kept in the employee’s file.
Preparing a handbook can and probably should be an involved process. But taking time to think through issues and policies in creating a handbook can help minimize disagreements and employer liability.