An employee handbook is an important communication tool between an employer and its employees and a valuable resource for setting forth workplace standards to guide employee behavior and performance expectations.
A well-written and compliant employee handbook may also be used by managers and supervisors as a guide to handle issues on a consistent basis. However, if an employer is not careful with its wording, it could be making some major mistakes that put it at greater risk of a lawsuit.
Here are 10 employee handbook mistakes your company may be making:
1. Your Handbook Lacks a Disclaimer and Creates a Legally Binding Contract
It is essential to include a clear and conspicuous disclaimer stating that the handbook does not create an employment contract or contractual obligations of any kind. An employer should always avoid using language that may lead employees to believe that their employment is not at-will and they may only be disciplined or terminated for cause. The employer should also state the handbook policies can be amended, modified or changed at any time at the employer’s discretion. All of this is extremely critical as it protects the employer’s interests and can help avoid litigation.
2. You Obligate Yourself Too Much When It Comes to Discipline
Be extremely careful when drafting disciplinary policies and do not obligate the organization to a rigid disciplinary procedure or a specific set of disciplinary steps. You should also avoid being too detailed when it comes to listing the conduct that may be grounds for discipline. The employer should reserve the right to make decisions that are in the best interests of the organization.
3. Your Attendance Policies Are Unlawful
Make sure to avoid blanket policies that impose a maximum amount of leave time before an employee is automatically terminated, or no-fault attendance policies which charge an absence against an employee regardless of the reason for the absence.
These policies can be risky because they do not take into account the employer’s obligation to engage in the interactive process under federal laws such as the Americans with Disabilities Act (ADA), and ignore the fact that additional leave can be a reasonable accommodation. They also may fail to take into account federal, state and local leave laws and employer obligations. Additionally, an employer should avoid “use it or lose it” policies regarding paid time off or vacations as these may also be unlawful.
4. Your Employees Can’t Read or Understand the Handbook
An employer may be making a huge mistake if its employees cannot read the employee handbook for one reason or another. That’s why it’s important to avoid any language barriers and make sure the handbook is written in a language most employees can understand. This means translating the handbook into another language if that language is spoken by a significant number of employees in the workplace.
An employer also needs to make sure that handbook polices are written in an easily understood manner, using everyday language and avoiding legal and HR jargon. Policies should be clear and unambiguous, and should not be subject to various interpretations. Finally, an employer should also provide training on its handbook to all employees.
5. You Failed to Include an Acknowledgment and Consent Form
One of the most important aspects of any handbook is the form employees sign indicating that they have received the handbook and that they have reviewed it, understood it and consent to its policies. This is critical because if an employer fails to include an acknowledgment and consent form, an employee can say that he or she did not receive the handbook and he or she was unaware of the policies it contained.
An executed acknowledgment and consent form can be Exhibit A in case of a lawsuit and will allow an employer to show that it had a policy, and the employee violated it. It is a good idea for an employer to obtain acknowledgments when the handbook is issued, when a new employee receives the handbook or when updates are made. An employer should be sure to maintain a record of all employee acknowledgments as well.
6. Your Policies Violate the NLRA
Under the National Labor Relations Act, both union and non-union employees have a right to engage in “protected concerted activity” and collectively bargain or discuss wages, hours and working conditions and seek to improve their employment status. In response, the National Labor Relations Board has been actively pursuing employers that maintain policies which may infringe upon an employee’s right to engage in protected concerted activity. Thus, an employer should exercise caution when drafting provisions regarding the following:
• Confidentiality;
• Employee interaction with third parties;
• Social media;
• Use of the employer’s intellectual property;
• Use of photography and video;
• Conflict of interest rules; and
• Contact with the media.
An employer should avoid blanket policies attempting to chill employee rights.
7. Your Discrimination and Harassment Policies Are Not Explicit
If you don’t already do so, your organization should explicitly state in the handbook that it prohibits all discrimination, harassment and unwelcome conduct based on any protected status, such as race, national origin, religion, disability or any other characteristic legally protected under federal, state or local laws.
What’s more, an employer should include a specific and detailed complaint procedure explaining who to bring a complaint to, and how complaints may be made. It is essential to be on notice of any discrimination, harassment or unlawful conduct so that the employer may conduct any necessary investigation into the unlawful conduct and impose discipline if needed. Such a policy can also serve as a defense in case of a lawsuit and minimize the risk of employer liability. Additionally, an employer may be able to solve issues before they escalate.
Lastly, the policy should include a statement that an employee will not be retaliated against for bringing a complaint of discrimination, harassment or unlawful conduct to the attention of the employer, HR or management.
8. You Obligate Yourself Too Much
An employer must leave itself room for discretion when it comes to workplace rules and policies. As such, an employer should avoid writing policies in absolute terms and leave wiggle room.
For instance, an employer should avoid making promises or guarantees. Thus, instead of stating that the employer “will” or “shall,” state that the employer “may’ or “will make every effort to” or “will attempt to.” Similarly, an employer should avoid trying to have an employee handbook cover all employment-related situations. If necessary, an employer may want to consider having a separate policies and procedures manual for supervisors and managers.
9. You Fail to Properly Protect Confidential Information
Handbook provisions seeking to protect confidential and proprietary information, as well as trade secrets, are important to protecting the employer’s confidential information and intellectual property.
However, an employer may be making a huge mistake if it fails to properly identify the types of information it considers confidential, and is not specific enough when describing the confidential information and trade secrets the employer seeks to protect. Consider using additional confidentiality agreements and non-competes to further memorialize employee obligations.
10. Your Handbook Is Out of Date
It is critical to have a handbook that is up to date and complies with the latest laws affecting the workplace on the federal, state and municipal level. This means that an employer should frequently review and revise its handbook policies to make sure they incorporate the latest requirements and inform employees of laws affecting the workplace.
What’s your biggest employee handbook challenge? Please let us know by leaving a comment below.
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