Be Hands-On With Your Handbooks

By Jon Hyman

As we approach the end of the calendar year, I start to think about all of the things I’ve accomplished, or, more to the point, have not yet accomplished. It allows me take stock of where I am, both professionally and personally, and set goals for the upcoming year.

The same holds true for businesses. One area often in need of improvement for many organizations is the employee handbook. Walk over to whichever file you keep your handbook, look for the date it was last updated, and if it is anything earlier than 2014, it’s time for a deep review.

A handbook should be a set of guidelines for the company to follow. It should not be intended to account for every situation that could arise, nor should it be written in stone. Companies should write handbooks to leave enough flexibility to change policies when the situation dictates. Here are some thoughts about reviewing and updating your company’s handbook.

1. Illegal overtime policies: For example, “All overtime must be authorized by a manager or supervisor and the company will only pay authorized overtime.” Such a policy is illegal if it is applied as written. All overtime, whether its authorized or not, should be paid. A better rule to control unauthorized overtime is to prohibit unauthorized overtime and discipline those who violate the rule.

2. Vague Family and Medical Leave Act language: The FMLA is rife with traps for employers who do not specify certain eligibility requirements. Otherwise, a company leaves itself open to be sued by otherwise ineligible employees. A handbook should also be clear on the interplay between FMLA leave and other paid-leave policies and to make sure that employees cannot double-dip by first exhausting paid leave before turning to unpaid FMLA leave.

3. Missing harassment policy: An anti-harassment policy is necessary to take advantage of the certain affirmative defenses to harassment claims. It is one of the most important policies a handbook should contain, and no handbook is complete without having such a policy. Also, don’t forget strong anti-retaliation assurances.

4. Bans on salary and other work-related discussions: The National Labor Relations Act makes it unlawful for any employer, whether union or nonunion, to interfere with, restrain or coerce employees exercising their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. One such protected activity is discussing terms and conditions of employment, such as wages. A policy that could be construed to prohibit discussions of wages or other terms and conditions of employment would violate the NLRA. A safer rule would limit confidentiality to information about corporate information and customers, and would not interfere with disclosure of information about employees’ terms and conditions of employment.

5. Unnecessary probationary periods: Probationary periods are typical in union contracts, but have no place in a nonunion setting. Such a policy is counterintuitive to the at-will nature of the employment, and could set an unreasonable expectation of continued employment after the 90 days expire. A better policy would simply reaffirm that employees are at-will and can be terminated at any time for any reason, and that all new employees’ performance will be evaluated after 90 days.

6. Missing no-solicitation policies: These policies are necessary to try to limit union solicitations in the workplace, but cannot be specifically directed at union activities. Instead, companies can draw any reasonable line, so long as the line drawn is not specifically tied to union solicitations. Moreover, the rule should include the use of bulletin boards and corporate computer systems (email, intranets, etc.). Be warned, however, that the NLRB just mandated that if corporate email systems are open to employees, they must be open to those employees using those systems to communicate about labor unions during nonworking time.

7. Lack of an at-will disclaimer and signed receipt:In litigation, a handbook is only as good as being able to prove that an employee received it on a certain date. The best proof is a signed, dated receipt in all employees’ personnel files, with enough information in the receipt itself to link it to the handbook. Also, handbooks should clearly state that employees are at-will, that the handbook is not a contract and that employees should not rely on any statements in the handbook.

An employee-handbook review is the low-hanging fruit of the HR world. Dust it off, give it a read or two, take a stab at revisions, and pass it off to your employment lawyer for his or her blessing.

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