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Employee Handbooks
Posted on January 5, 2011 in Compliance, Consulting
An Employee Handbook should be the most effortless and trouble-free document an employer maintains. All too often, though, it lands into two equally inefficient and useless categories. On one hand, there is the slacker Handbook, a pile of unbound pages that collects dust at the bottom of a rarely opened drawer; a shadow of a draft, never to be distributed to the employees it wishes to serve. On the other hand, there is the Over-Achiever Handbook, distributed to new employees upon their initial arrival, causing eyes to widen with fear upon leafing through what could be confused with an engineering manual. Neither of these cases is helpful or constructive; either way employees are left confused. In this month’s newsletter, we provide the employer with guidance on how to prepare an effective, beneficial, and readable Employee Handbook.
Never over-commit. Irrespective of the fact that Employee Handbooks are not binding contracts, they set forth rules that people believe should be followed on both sides of the employment relationship. If an employer can make rules, it should be held accountable to following them. This may seem like an obvious point, yet many lawsuits stem from an employer who fails to consistently follow commitments stated in the handbook. As a simple rule, an employer should seriously read and consider its employee handbook, adhering to its mandates and requirements.
Mind Your Mission Statement. Employers mean well by boldly stating their greater purpose, but lawyers will take many shots, and cheap shots, at an employer with a mission statement that promises absolute integrity and fairness. A mission statement that touts fairness is not consistent with a clause that states employment is “at-will” and may be terminated with or without notice or reason. An employer should carefully read through its mission statement to verify consistency in actual employee treatment.
Be wary of absolutes. We have never counseled against a “no tolerance” policy on drugs. We believe that is simply good business. Yet many other absolute rules in the workplace prove more difficult to enforce. For example, adopting a rule that allows termination anytime an employee fails to call in or report to work for 3 days seems simple enough. Many would feel differently, though, if that person were incapable of calling because of some serious medical condition. Likewise, absolute limits on the length of time a person may be absent from work irrespective of the reason is basis for legal claims under the Americans with Disabilities Act (a topic for a future newsletter).
Keep it short. Most employee handbooks fall between 15 and 20 pages in length (without manipulating the margins and font size). Long handbooks typically contain unnecessary and confusing provisions and language. Simply put, no one will read a lengthy and tedious handbook and such length is not practical in day-to-day decisions.
Keep it simple. Handbooks can be, and arguably should be, boring and standard. Employee handbooks are not bedside reading material. An employee handbook is not synonymous with gripping, compelling, engrossing; it simply and clearly expresses job expectations to the employee.
Keep it standard. We have yet to come across a handbook protected by copyright laws, so it is typically permissible to borrow from other well-written handbooks. In all actuality, most handbooks look uncannily similar to one another, and we view this as a positive. For example, a terrific former mentor of mine drafted great absenteeism language years ago. Later, we would read very similar language in handbooks other than our own. He took great pride in the plagiarism of his work by others.
Keep the jury in mind. An employer should reflect on how their handbook would appear to the random people that a jury consists of, people who would have to read parts (or all) of the handbook. If an employee handbook becomes an exhibit at trial (and it almost always does in any employment case), then a standard handbook will be more easily understood and accepted by a jury.
Keep the required policies. Finally, a handbook must have certain policies. Every handbook must have a policy on: (i) equal employment opportunities, (ii) sexual and other illegal harassment; and (iii) the Family and Medical Leave Act, assuming that the employer has the requisite number of employees. (We presume that the employer meets the jurisdictional requirements of Title VII for this purpose.) A policy explaining the employee’s rights under the Americans with Disabilities Act can coincide with the equal opportunity statement.
We hope you find this newsletter helpful, and as always, we appreciate its distribution to friends who might also find it beneficial.