I’ve been tasked with the rewrite of our employee handbook. Can you tell me what the current thinking is on disclaimers? What are the key topics I should focus on as I do this rewrite? — Tom T., Manager of Staffing and Development, Modesto
Tom, congratulations to your organization for recognizing the need to keep an employee handbook current and relevant! You are also to be applauded for realizing that disclaimers are critical to ensuring that the handbook does not obligate your organization unnecessarily or cause more problems than it would prevent.
One important note: This answer is geared toward nonunion employees in an organization. Union employees typically are subject to contract agreements that have specific provisions for handling employee issues, processes, and work rules.
Important Disclaimers
Here are the most typical disclaimers found in employee handbooks:
At-will employment. Ensure that your company includes solid at-will assertions in your handbooks. For example, you could state: “Employees are hired for no specific time period, with no contractual relationship, and employment can be terminated by either party, for any or no reason, with or without notice, unless specifically prohibited by law.” The automatic presumption of “at will” status unless otherwise specified has been eroded to a great extent by state and federal law, court precedent (also known as “common law”), and implied contracts. If there is no at-will language, a plaintiff’s attorney can claim that you must have just cause to terminate an employee. Plaintiff’s attorneys also recognize that it will be more difficult to obtain damages for wrongful termination or breach of contract when an employer has asserted the employee’s at-will status.
Changing policies. An organization should always include a statement in its policies and handbook that it reserves the right to change its policies at any time, with or without notice (subject to applicable law), and that its policies are not a contract of any kind and do not affect the at-will status of the employment relationship. This language allows an employer to avoid an employee claim that there was some type of contract implied or inferred from written material, and that alteration requires the employee’s agreement.
No contract obligations. Include a statement (usually in the introductory area of the handbook) that the employee handbook is not a contract and does not ensure employment for any duration.
Superseding statement. Include a statement that the handbook supersedes all previous policies, organization handbooks, and/or management memos (if such memos are contrary to any policy covered within the current handbook). This statement is also usually included in the handbook’s introductory area. The superseding statement is meant to avoid an employee’s claim that he or she can rely on previously issued policies or handbooks.
Inability to alter or change. State that no employees, including managers or supervisors, have the authority, verbally or in writing, to alter any policy within the handbook unless explicitly agreed to in writing by the CEO, president, executive owner, or official designee. This language is critical to negating an employee’s claim that a manager/supervisor “promised” something that contradicts your current handbook.
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This list is not all inclusive. There may be other matters specific to your operations that you may want to include in your handbook. For example, if you have detailed benefit information, you may want to put in disclaimers about the various plans involved. It is also recommended that in certain policy areas, you repeat one or more of the disclaimers mentioned above. For example, if you include compensation information, you would want to reserve the right to change any of that policy at any time.
Current Hot-Topic Policy Focus
Any given industry or organization may have “hot-topic” policies that need special focus and should be addressed as immediately and carefully as possible. For example, the financial reporting provisions of the federal Sarbanes Oxley Act resulted in many organizations updating policies to ensure that practices met the law’s requirements. Changes to the Health Insurance Privacy and Portability Act (HIPAA) required a great number of organizations to alter policies related to the handling of health-related documents. In the handbook, that may have been addressed in processes for e-mail, regular mail, and any other communication with certain confidential information.
Tom, as I do not know what type of business you are in, I can’t address what might be most important to your organization. However, here are a few handbook policies that are now critical to most organizations:
Electronic equipment/Internet/communications systems With the proliferation of electronic gadgets, equipment, and communication systems, some issued by the employer and some employee-owned and used for or at work, a myriad of issues can arise. For example, an organization could be held liable for an employee’s illegal downloading of child pornography or copyrighted material. Or, if an employee compromises confidential customer/client data, an organization could face loss of public trust, reduced business, or possible litigation. Also, if your organization reviews or monitors Internet usage without proper employee notification and/or consent, an employee might claim a violation of privacy. Therefore, it is critical to have a policy (or policies) that address all of these kinds of concerns. First and foremost, it is important to make it very clear that employees should have no expectation of privacy when using company systems or equipment of any type, in any location, for any reason..
Antiharassment Race discrimination/harassment and sex discrimination/harassment represented 35.5 percent and 30.5 percent, respectively, of the charges filed with the Equal Employment Opportunity Commission (EEOC) in 2005. Most organizations need to have well-written no-tolerance policies that describe what constitutes harassment, who is protected, and how to report concerns—and that state that retaliation for reporting concerns is not tolerated. (In 2005, 29.5 percent of EEOC claims included retaliation charges.) This policy should be well communicated, both within and outside of the handbook. In California, where sexual harassment training for supervisors is mandated for organizations with 50 or more employees, the assumption is that an official policy is in place and will be enforced..
Confidentiality/Nondisclosure While noncompete agreements are generally not enforceable in California, an organization can still enforce comprehensive confidentiality and nondisclosure policies. It has become very easy for employees to access, download, and widely “broadcast” company information on blogs and websites. Be sure to describe the information, documents, and intellectual property that the policy covers..
Safety/violence Considering our current national concern and focus on possible terrorist attacks, a flu pandemic, firearms in the workplace, and/or natural disasters, make sure your handbook addresses basic safety information, such as an emergency plan. You may wish to refer employees to separate, more comprehensive policies (such as an Injury and Illness Prevention Program) and the department or manager in charge of such policies..
Summary
Updating the employee handbook is an important project to be tasked with. Fortunately, you can find very helpful sample policies and information from the California Employer Advisor, the California Chamber of Commerce, or many other human resources organizations such as the Society of Human Resources Management. Good Luck!
Diana Gregory, SPHR, is senior human resources specialist at the Walnut Creek office of Administaff, a professional employer organization and human resources outsourcing firm.