Today we present a guest article by my colleague, Jeanne M. Colachio, Esq. We both presented at the recent Lorman Employment Law Update seminar, for the second year. She agreed to become my first guest blogger and has great advice about employee handbooks. We wanted to share her excellent advice with you.
EMPLOYEE HANDBOOKS: EVERYTHING YOU NEED TO KNOW TO KEEP YOU OUT OF TROUBLE
By: Jeanne M. Colachico, Esq.
Jeanne M. Colachico, Esq. & Associates
In today’s complex and legal world, a well-drafted employee handbook is an organization’s first line of defense for promoting organizational efficiency, employee productivity, and for minimizing liability and avoiding litigation. A poorly drafted document, however, can present a number of critical problems and liabilities.
Here are some easy tips for avoiding mistakes with employee handbooks.
- Avoid Computer-Generated, One-size Fits All handbooks. There are many computer programs, websites, professional organizations that provide generic handbooks. These need to be tailored to your organization, its actual policies, and regularly updated to meet organizational and state or federal legal changes.
- One Handbook Does not Last Forever. A well-drafted handbook cannot be filed in a cabinet and never reviewed again. You should update it at least every two years.
- Keep Record of Employee Acknowledgements of Receipts. It is critical that an employer demonstrate that its employees received the manual, were aware of its contents, and agreed to comply with its provisions. The best means for accomplishing this goal is through a signed employee acknowledgement form which is retained in an employee’s personnel file.
- Be sure Contract Disclaimers are Conspicuous and Adequate. The contract disclaimer must be conspicuous and should indicate that the handbook only contains guidelines. The disclaimer must also retain for management the discretion to change policies unilaterally at any time. The handbook should not limit managerial discretion to discharge for “good cause” or reassure employees that their jobs are secure.
- Clearly Establish Privacy Expectations. The fastest developing area for workplace claims involves employee privacy claims and invasion of privacy claims by employees. Employee handbooks can play a significant role in managing employee’s reasonable expectations of privacy in issues relating to employee theft, email, blogging, computer access and use, intellectual property, safety issues, and harassment.
- Provide Adequate Information on Family/Medical Leave Provisions. An employer’s obligations with respect to Family and Medical Leave involve significant liabilities and there have been recent amendments. If these apply to your organization, they should be stated clearly.
- Exempt/Non-Exempt classifications. One of the most common legal actions brought by employees and an ever-present issue for many DOL Audits involves compliance with wage and hour laws. Companies must insure that the Compensation sections of their handbooks properly address these issues and note that all employees appropriately classify employees as exempt or non-exempt from federal and state overtime laws.
- Be sure harassment and EEO policies are complete and up-to-date. Many issues arising in the workplace involve equal employment opportunity and harassment issues and the employee handbook should articulate clear employer policies against harassment, discrimination and for equal employment opportunity. In so doing, the EEO statement should be as complete as possible in defining protected classes under the policy. In Massachusetts, sexual orientation, transgender status and genetic information are protected classes. The employer must also have a clearly articulated complaint process aimed at eliminating harassment which should be set forth in the handbook.
- No Promises, Ever. Promises can demonstrate that the nature of the employment relationship has changed. So, the handbook should be careful not to guarantee employment in any way by a conspicuous at-will statement and careful treatment of disciplinary action issues. For example, references to “good cause”, promises of progressive discipline in all instances, any mandatory language such as “shall” or the use of “fair” should be avoided.
- Consistent Application of the Handbook’s Provisions. Failing to use the handbook can be a critical and costly mistake. Managers and employees must be informed of its contents and their respective obligations through regular training and updates. Managers should be expected to model the behavior outlined in the handbook.
Expanding employment horizons means new policies.
Some organizations have expanded their workplace violence, progressive discipline, and harassment policies to develop a stand-alone policy on bullying. Most find that merely adding a reference to “bullying” to these policies is not enough. *
Also, increased use of social media e.g. Twitter, Facebook, Linked In and others can lead to other policy problems. Lost productivity, privacy breaches, disclosure of company private information and proprietary data, defamation and employee relations issues are but a few of the issues which can result from inattentiveness to uses of social media in the workplace. These issues have resulted in many organizations adopting policies in this area as well.
A solid employee handbook increases organizational efficiency, employee productivity, and minimizes liability and costly litigation.
* Comment by Larry: The one item about which there may be debate is a provision on bullying. Many companies are including it, and, while we certainly agree that bullying cannot be tolerated, we see more general language about treating employees with respect as an alternative. There is something to be said for waiting until there is a legal requirement.
Jeanne M. Colachico, Esq. & Associates is a legal and human resources consulting firm located in North Andover, MA, providing guidance to employers on this and other workplace legal and employee relations issues.