You’ve just been put in charge of writing your company’s employee handbook — lucky you! Fortunately, CED is here to help. Here are 10 common employee handbook drafting pitfalls to avoid, courtesy of the law firm of Lehr Middlebrooks & Vreeland, PC.
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.
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.” Come again?
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 “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 — and 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.
101 California-specific employee handbook policies
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 their California counterparts — as well as 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 California (as well as most other 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.
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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.
Tomorrow, the rest of the Top 10 list. We’ll also introduce you to a valuable resource, specifically for California employers, that will make all of your handbook-writing hassles vanish…instantly.
Download your free copy of 20 Must-Have Employee Handbook Policies today!