How Employee Handbooks Can Keep You Out of Court
An employee handbook can be a critical tool not only in setting forth the company’s values and culture, but in helping an employer stay out of court. In a recent XpertHR webinar, Littler Mendelson employment attorneys Christopher Cobey and Marissa Dragoo offered the following key tips to ensure your company’s handbook is in shape for 2016:
1. Make Sure Your Handbook Has the Right Policies
Even though there are no laws about exactly what should be in an employee handbook, Dragoo warns that an employer should be especially careful about which policies are included and which are not. For instance, she notes that an employee handbook should include policies on equal employment opportunity such as discrimination and harassment policies and complaint/reporting procedures. But that’s not all. Some other must-haves Dragoo and Cobey detailed include:
• Drug and alcohol policies;
• FMLA and leave policies
• Social media provisions;
• Confidentiality; and
• Wage and hour provisions covering rest breaks, meal breaks and overtime.
On the other side of the coin, Dragoo cautions that an employer should be careful and generally not include disciplinary policies as this will obligate the employer and not leave room for flexibility given that not every disciplinary situation is the same. Meanwhile, Cobey advises that it may not be a good idea to bury an arbitration agreement in an employee handbook.
2. Include an Acknowledgment Form, Employment At-Will Statement and Disclaimer
Cobey also recommends providing employees with acknowledgment forms so they can attest that they have received, reviewed and understand the employer’s policies and been given the opportunity to ask questions. Meanwhile, Dragoo warns that an employer should be sure that the employee handbook contains a disclaimer that will prevent the handbook from becoming an enforceable contract. In addition, an employer should be sure to reserve the right to change or modify any policies at management’s discretion.
3. Be Aware of Local Laws
Both speakers stressed that an employer should be aware of state, county and municipal laws when drafting an employee handbook. This is especially true because state and local laws so often go further than federal law as evidenced by numerous state and local laws and ordinances on minimum wage, health insurance, paid sick leave, employee wage communications and more. As a result, it is imperative for employers to stay abreast of employment law changes and update their handbooks accordingly.
4. Don’t Sleep on the National Labor Relations Act
Section 7 of the National Labor Relations Act (NLRA) provides both union and nonunion employees with the right to engage in protected concerted activity and collectively work together to improve their wages, hours and working conditions. In recent years, the National Labor Relations Board (NLRB) has been particularly active. In particular, Cobey notes the NLRB has been vigorously pursuing employers with handbook policies that are overly broad and can be construed as restricting employees from collectively discussing their wages, hours and working conditions.
The NLRB has been focused on lawful and unlawful language in policies in both union and nonunion workplaces regarding social media, confidentiality, employee speech and conduct, and investigations among others.
5. Update Your Employee Handbook and Provide Training
An employee handbook should be provided to all employees and be updated on at least an annual basis to account for any legal or business changes. Cobey also says employees should be given the opportunity to read, and review the handbook and ask questions of management. The employer should decide whether it will distribute the employee handbook in paper form, electronically or both and make sure that employees are kept up to date on any changes with a mass email or with a training session to review amended provisions.
An employer also should consider providing the employee handbook to employees in another language if a great majority of the work force does not use English as their first language so they are able to understand it. However, be careful about nuances in translation.
6. Be Consistent
Finally, an employer should ensure that the handbook is written in one voice, is consistent and that the policy provisions do not conflict. In fact, Dragoo calls consistency, “The number one factor in helping you stay out of litigation.” This means not only in terms of the handbook, but in how management applies the handbook policies.