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Top 10 Potential Perils of Employment Policies

Almost every employer has policies. The question is, where do they come from? They come from HR, right? But where does HR get them? They must get them from somewhere. And what if you don’t have an HR department? Then someone must have to — gasp — write them. We’re talking about your employment policies and employee handbook, of course.

If you don’t have an HR department, where can you go for help? Even if you’re an HR professional, are there tips you should know to avoid common pitfalls? Here are a few tips to help you start the new year in fine policy-writing form.

Audio Conference: New Year, New Laws, New Employee Handbook? What to Change and What to Keep in 2011

No. 1: Avoid ‘legalese’ and jargon
Even lawyers shouldn’t write like lawyers. This is no time to impress your boss with “party of the first part”-type language. Employment policies should be written in clear, easily understandable language. Avoid jargon from your industry. Remember, the most important reader of your handbook is the new employee, who is unlikely to be familiar with acronyms or jargon. If you must use industry acronyms, explain them when they’re first used or provide a definitions section. (Really, would a new employee know that “DUMB” stands for “Division of Urgent Matters and Business”?)

No. 2: Avoid ambiguity
The interpretation of a handbook shouldn’t be a multiple-choice affair. An anonymous, well-intentioned employer recently offered the following two sentences in its handbook regarding its break policy: “If your break is interrupted, you are not entitled to pay. If your break is interrupted, you will be paid for the break time.” Run that by me again? Of course, the sentences are contradictory, and only the latter one is accurate under the law.

Another employer stated in its dress code that employees were not allowed to wear “muffin tops.” When asked to describe a muffin top, the employer described it as being just like its namesake: “those shirts that don’t come down far enough to meet low-waisted pants and skin oozes over the top of the pants like a muffin.”

The lesson? Choose your language carefully. Will everyone know what you’re talking about? To eliminate ambiguity and ensure clarity, proofread your handbook — then proofread it again.

No. 3: Don’t overdo it
Don’t attempt to make your policies so comprehensive that a court might assume they’re intended to cover every conceivable situation. Your handbook will be very long (and unread) and will leave you little flexibility. A common mistake is to draft very specific policies and then disregard them. Leave yourself flexibility in your policies and procedures.

For example, if your company conducts formal performance evaluations every 12 to 16 months, don’t include a policy stating all performance reviews will be conducted “annually” or “every 12 months.” Allow some flexibility by stating that performance reviews will “typically” be conducted annually.

Audit your policies and practices with the Employment Practices Self-Audit Workbook

No. 4: Don’t underdo it
An employee handbook is your opportunity to communicate critical information to employees about their legal rights under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other important terms and conditions of employment.

A carefully crafted handbook can be an important part of your defense against alleged statutory violations. A poorly drafted handbook — one that omits explanations of employee rights or includes poor or incorrect explanations — might be used as “Exhibit A” against you.

No. 5: Make sure you don’t have ‘contracts to sign’
Remember the old adage, you have “places to go, people to meet, and contracts to sign”? The last thing you want is to be contractually bound by an employee handbook. An employee handbook is a tool to communicate with employees, not a contract. Besides, employment is presumed to be “at will” in most states unless you, as the employer, do something to mess it up. Make sure you have a prominent disclaimer stating that the handbook is not a contract and making it clear that all employment with your company is at will .

But wait a minute. What about things you want to contractually bind employees to, such as confidentiality agreements, intellectual property agreements, and the like? You want those to be binding. Those topics aren’t good candidates for employee handbooks and should be the subject of separate signed agreements. Check with your attorney for assistance.

No. 6: How ‘progressive’ should you be?
No, we’re not talking about political candidates. Many employers get caught in very rigid progressive discipline policies. What is a progressive discipline policy? Simply put, it’s a method of performance improvement in which the discipline meted out to employees for rule violations becomes successively harsher depending on the severity of the offense or number of infractions.

Often the discipline begins with a verbal warning and proceeds through several steps to eventual termination. Progressive discipline is, in and of itself, an admirable policy. It should, however, reserve flexibility for you to apply any step of discipline, including termination, at any time without having applied earlier steps or given previous warnings.

One hapless handbook author failed to reserve that flexibility and wrote the following in an employee discipline policy: “No employee shall be discharged for misconduct except where the conduct is continuous and irremediable.” Misconduct that is “continuous” and “irremediable”? (For those of you who need to look it up like we did, “irremediable” means “incurable” or “can’t be remedied.”) Most of our kids don’t even manage misconduct that is “continuous” and “irremediable” — at least not very often.

The moral of the story? Leave yourself flexibility when drafting disciplinary policies.

More than 100 sample policies written by Margaret Morford and employment law attorneys are available as part of your subscription to a state Employment Law Letter or

No. 7: Use permissive language
No, this isn’t a political or social statement along the lines of being a strict or permissive parent. Using permissive words allows your company maximum flexibility. Words such as “may,” “typically,” and “generally” are less restrictive than words such as “will” or “must.” Permissive language is simply another tool to allow you to choose how to apply and interpret your employee handbook. While consistency in interpretation is important, you want to reserve the flexibility to make exceptions and interpret policies when appropriate.

No. 8: 10 important policies to consider
There are many policies that are important to have in your handbook. Here are a few that sometimes get overlooked:

No. 9: Four things you can’t (or shouldn’t) say in an employee handbook
Some things can get you into trouble when drafting your handbook. Here are some topics to avoid:

  1. Just cause. You don’t need cause to terminate or discipline an employee in an at-will state. Why create confusion?
  2. Permanent position. Never, ever refer to “regular” employment positions as “permanent.” It tends to create an expectation that employment is guaranteed. It’s not; it’s at will.
  3. Due process. Never promise “due process” or anything similar for disciplinary actions or grievances.
  4. Probationary period. Use the term “orientation” or “introductory” period instead. “Probationary” creates an expectation that the employee’s status will change after he completes the period. It doesn’t. The employee is still employed at will.

State-by-state comparison of 50 Employment Laws in 50 States

No. 10: mistakes employers make with handbooks
There are many things employers do with handbooks that you can avoid by simply reading this list and not following in their footsteps:

  • “Oops, I forgot .” You put all your work into a great handbook and then fail to distribute it to your employees. Unfortunate? Yes, but it happens.
  • “I need your John Hancock.” Distributing a handbook is no good if you don’t have a record of who received it. Make sure you have a signed acknowledgment from every employee that he received and reviewed the handbook and all updates.
  • Winging it . Many employers write handbooks, distribute them, and then fail to read and follow them when making important employment decisions. Read your handbook and follow it.
  • Putting it on the shelf. Handbooks should be reviewed and updated at least annually for legal compliance and to ensure that you’re following your own policies.
  • I don’t need any help with that, thanks. Many employers have concluded that they are experts in all things, including handbooks. Better yet, they buy the do-it-yourself software package at the local Office Wiz store and produce a handbook. Unfortunately, those one-size-fits-all packages don’t adequately reflect state law and are often poorly drafted. Having your handbook reviewed by an employment law attorney is important to having a handbook that will be a benefit and not a detriment to your overall employment-law risk management. Good luck!

Bottom line
A handbook can be a valuable tool for your business, or it can be a source of confusion (and even litigation). Treat your handbook with the respect that it deserves as a vital communication link to your employees. Spend time developing it, update it periodically, and have it reviewed by experts. If you do, you’re much more likely to have the type of handbook that reduces your risk instead of increasing it!

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