2340 Detroit Ave, 3rd Floor Maumee, OH 43537 | Phone: 419-535-5502

Employee Handbooks—Better Watch Your Words!

Originally posted by Joan Farrell on http://hr.blr.com

Most employers know that an employee handbook can be a great way to communicate important information to employees about policies, procedures, benefits, and company goals. Equally important is what a handbook does for employers by publishing the employer’s policies against discrimination, harassment, and retaliation. When employers draft or revise a handbook, there are “three C’s” they should keep in mind, according to Allan H. Weitzman, a partner in the law firm Proskauer Rose LLP.

Speaking at the 2012 SHRM Annual Conference, Weitzman said a handbook shouldCommunicate information, Comply with applicable laws, and not be a Contract.

Although most people think of a contract as a much more formal document, courts in many states will find that a handbook is an express or implied contract. For example, a handbook statement providing that employees will be laid off in reverse seniority was found to provide job security to employees who were otherwise employed at will. Instead, handbook language should provide discretion to employers, particularly when it comes to discipline. And it’s important to add words like “generally” or “we will try” when making statements about an employer’s responsibilities. For example, instead of saying “we provide employees with…” employers should say “it is our goal to provide employees with…”  Although it’s a subtle difference, it’s an example of language that may help employers avoid liability for breach of contract.

Disclaimers and signed receipts can also help in preventing the creation of implied contracts. A disclaimer advising employees that the policies and procedures in the handbook are not intended to create a contract should be prominently displayed in the handbook. A signed receipt or acknowledgment can include statements that the employee received a copy of the handbook (including the disclaimer), agreed to read it thoroughly, and agreed to ask HR questions about any unclear policy.

It’s also important to include a clause stating that supervisors don’t have the authority to enter into employment agreements.  This can help an employer counter an employee’s claim that a supervisor’s assurances override a contrary policy in the handbook.

In addition to making sure that a handbook is not an employment contract, Weitzman described other guiding principles to follow when creating a handbook:

  • Plainly state employer rules, regulations, and procedures. This includes items such as access to personnel records, anti-nepotism, searches on employer property, attendance, cooperation in in-house investigations.
  • Describe employer policies designed to assist employees, such as the federal Family and Medical Leave Act, state family and medical leave, pregnancy and child care leave, and short-term disability leaves.
  • Communicate employer commitment to equal opportunity. Weitzman noted that an employer’s anti-harassment policy should cover all kinds of harassment, not just sexual harassment.
  • Set guidelines for the termination of employment. Weitzman pointed out that arbitration clauses and jury waivers should not be in a handbook because they are documents that should be legally binding — something that the handbook says it’s not.
  • Develop cutting edge policies that cover evolving technologies like social networking sites and blogging, as well as policies that help ensure a safe workplace without violating new state and local gun laws.
  • Incorporate state and local legal requirements. These can affect access to personnel records, smoking policies, breastfeeding accommodations, jury duty policies, and leave for blood, organ, or bone marrow donation.