Most human resources professionals understand the importance of a carefully written employee handbook. But sometimes the higher-ups in an organization don’t think about why such a document is advisable. Recently, a group of attorneys from the Employers Counsel Network, which focuses on employment law issues, was asked what to do when a CEO says a handbook isn’t worth doing. Their answer: Let the CEO know how the pluses outweigh the minuses. 
Sarah Shine, an attorney with Perkins Coie LLP in Anchorage, Alaska, says to remind the CEO “of the importance of ensuring that all employees receive the same information—and have the same expectations—about the workplace.” An employee handbook can also provide valuable legal protection if an employee files a lawsuit or an equal rights complaint, she says.
A handbook also can be invaluable in dealing with employee misbehavior, Shine writes in the November issue of Alaska Employment Law Letter, and she suggests other points to stress to a reluctant CEO:
- A handbook can help educate employees about the company’s history and objectives.
- It provides a ready resource for employees and supervisors to use in answering common questions.
- It helps ensure that a company acts consistently in similar situations, reducing the risk of liability for employment discrimination claims.
- It can set forth the company’s at-will-employment policy.
- It may help prevent unlawful or unethical conduct.
Shine cautions that a handbook shouldn’t be overly specific since it needs to allow for flexibility and discretion. “However, drafting an employee handbook that focuses on general workplace policies and outlines employees’ basic responsibilities is highly recommended,” she says.
Going without a handbook “is like creating a society without laws,” Jo Ellen Whitney, an attorney with the Davis Brown Law Firm in Des Moines, Iowa, writes in the November issue of Iowa Employment Law Letter. “The only certainty is chaos. How else will you prove that you have an antiharassment policy? Or a workers’ compensation reporting procedure? Handbooks are frequently part of employment lawsuits because they illustrate that a company has workplace rules in place and enforces them consistently.”
Jerrald L. Shivers, an attorney with the The Kullman Firm in Jackson, Mississippi, suggests reminding the CEO that every employer has certain policies that must be communicated to employees, and a handbook provides an efficient and effective way to do that. “For example, carefully worded harassment policies and reporting procedures are essential to your company’s ability to defend itself against harassment claims,” he writes in the November issue of Mississippi Employment Law Letter.
Shivers also points out that employers covered by the federal Family and Medical Leave Act (FMLA) are required to provide certain information about the FMLA to every new hire. Plus, there are other policies employers need to be able to prove they have communicated to employees.
“A well-written handbook can be a lifesaver in a legal dispute if you can prove it was actually received by employees,” Shivers says. “A poorly written handbook, however, could be your worst nightmare.”
General advice
Here is a nonexhaustive list of topics to consider when drafting a handbook:
- Make sure that a handbook’s wording doesn’t turn it into a contract, and include an employment-at-will disclaimer. In all states except Montana, employment is considered at will, meaning employment can be terminated at any time for any legal reason. But a handbook creates a problem if it seems to establish a contract and makes certain promises that can be interpreted as guaranteeing employment. An at-will disclaimer spells out that the handbook isn’t a contract and avoids promises.
- Make sure that a handbook doesn’t infringe on employees’ rights under Section 7 of the National Labor Relations Act (NLRA). And don’t make the mistake of thinking that the NLRA applies only to unionized employers. Section 7 applies to all private workplaces and provides employees with the right to engage in “concerted activities” to advance their interests as employees, meaning they must be allowed to discuss pay, workplace conditions, discipline, and other terms and conditions of employment. The National Labor Relations Board looks carefully at handbook provisions that might discourage employees from exercising their Section 7 rights. An example of a problematic policy is a social media rule prohibiting employees from posting “negative remarks” about the employer. Such a rule could be seen as discouraging employees from discussing terms and conditions of work. Including a disclaimer explaining that nothing in the handbook is meant to interfere with employee rights guaranteed by the NLRA is helpful.
- Keep restrictive covenants out of an employee handbook. Noncompetes, confidentiality agreements, and nondisclosure agreements are contractual provisions, and since the handbook isn’t meant to create a contract, such contracts shouldn’t be a part of it.
- Include an equal employment opportunity policy prohibiting discrimination based on characteristics protected by law. An antiharassment policy also should be included.
- Employers covered by the FMLA should include information on employee eligibility and notice requirements, reasons leave can be taken, the definition of “serious health condition,” whether employees must use their paid time off during leave, employees’ rights to continued benefits and reinstatement, and enforcement mechanisms.
- Include a policy on Internet and email usage.
- Include a form so that employees can sign that they received a copy of the handbook. A signed and dated acknowledgment is helpful when an employee claims ignorance of an employer’s policy.
Need to learn more? Is your employee handbook ready for 2016? Are you sure? Between the implementation of the Affordable Care Act, labor-friendly victories at the National Labor Relations Board, the legalization of marijuana, increased focused on transgender employees, and the passage of paid sick leave and domestic violence leave laws across the country, 2016 changes will likely necessitate changes to your employee handbook. Join us on December 15 or January 7 for the live webinar Employee Handbooks: Key Updates, Drafting Tips, and Enforcement Advice for 2016 to learn how to update your employee handbook—a living document that must remain current and correct to protect your organization in the event of a dispute with a current or former employee. For more information, go to http://store.hrhero.com/handbooks-121515