When it comes to drafting employee handbooks and policy provisions, the stakes are high and employers who make mistakes, whether they be big or small, may cause confusion and potentially face costly litigation.
As a result, an employer should be aware of and avoid these top 10 handbook mistakes:
1. Make Sure Your Harassment Policy Coverage Is Comprehensive
It is important for an employer to implement a strong harassment policy prohibiting not just sexual harassment, but also harassment based on disability, race or religion. Further, a multichannel complaint procedure will allow employees to bring complaints to various members of management, assure employees that their complaints will be addressed and advise them that they will not face retaliation.
2. Do Not Violate the NLRA
The National Labor Relations Board has increasingly been pursuing employers who have employment policies that violate the rights of both union and non-union employees to engage in protected concerted activity to improve their wages, hours and working conditions. Thus, an employer should exercise caution when drafting provisions regarding the following:
• Employee interaction with third parties;
• Social media;
• Use of the employer’s intellectual property;
• Conflict of interest rules; and
• Contact with the media.
3. Include an At-Will Employment Statement and Disclaimer
All handbooks should contain a visible at-will employment statement and a disclaimer, preferably in bold or large print, that clearly states that the handbook and its policies do not create an employment contract and that the policies can be amended, modified or changed at any time at the employer’s discretion. This is extremely critical as it protects the employer’s interests and can help avoid litigation.
4. Comply with Federal, State and Municipal Law
An employer should be up to date on the latest federal, state and municipal employment laws and make sure to incorporate such legal requirements into its employee handbooks and policies. Compliance can be particularly challenging when it comes to complex issues such as family leave, paid sick leave and reasonable accommodations, where the laws differ greatly and failure to comply could lead to litigation and penalties. Constant review and consultation with legal counsel can assist with compliance.
5. Narrowly Draft Disciplinary Policies
Be careful when drafting disciplinary policies and do not obligate your organization to a specific set of disciplinary steps. The employer should reserve its discretion and the power to make decisions that are in the best interests of the company.
6. Notify Employees of the Employer’s Right to Monitor
Handbook policy provisions should let employees know that they will have a diminished expectation of privacy when on company premises and using company-owned equipment and devices. These provisions also should set forth that an employer has a right to monitor employee actives and conduct within legal parameters.
7. Include Acknowledgments
Obtain an acknowledgement from all employees indicating that they have read, reviewed and thoroughly understand the handbook provisions and that they agree to abide by its provisions. This can be an extremely useful tool in the event of litigation down the road.
8. Avoid Restrictive Time Off and Leave of Absence Policies
An employer should 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.
Leave policies should be flexible and not penalize employees for legitimate absences. The handbook policy should advise employees how they can request a leave of absence or time off and that the company will review each request on a case-by-case basis.
9. Use Easy to Read Language
An employer should ensure that its handbook policies are easy to read, unambiguous and free of legalese.
10. Advise Employees About Policy on Unauthorized Overtime
In order to protect its legitimate business interests and control the cost of labor, an employer should be sure to advise employees of its policy on unauthorized overtime. It also should advise employees of the standard workweek and state that employees are required to obtain management permission to work overtime and that all overtime must be authorized by the employer.
If an employee works overtime without obtaining permission, although the employer may still have to pay it, the employer will have recourse to discipline the employee.