Dusting Off the Employee Handbook

Employment laws constantly change.  Your company manual should, too.

The New Year brings a flurry of critical issues for human resources professionals, including major changes affecting the Americans with Disabilities Act and the Family and Medical Leave Act, as well as the possibility of the Employee Free Choice Act becoming law.  Simply put, employers and HR departments have many challenges to tackle in 2009.

With such focus on major legislative changes, companies often overlook or shelve for another day seemingly mundane issues.  Too often, this includes a company’s employee handbook.  If you were to ask yourself how often you review and update your company handbook, what would your answer be?  What would your colleagues’ answers be?  Most would probably have a hard time remembering when they last tackled this tedious task.

Think of the handbook as a living document rather than something that simply collects dust on employees’ bookshelves.  The work world isn’t static; it changes, rapidly.  Laws change.  Your company changes, your workforce changes.  As such, your policies need to change.  So why are you using a handbook that was written five years ago?  The dynamic nature of employment law, including the recent flood of major revisions, has made certain policies in many outdated handbooks obsolete, confusing and, in certain circumstances, even illegal.

This handbook—this instruction manual, if you will—is a company’s first line of protection against employee complaints and potential lawsuits.  It gives employees a clear picture of the company’s rules, benefits and expectations.  A well-crafted employee handbook also can be used as an effective tool to minimize both litigation and liability.  A poorly drafted or largely ignored handbook can do more harm than good.  If your employee handbook has not been reviewed and revised within the past six months, chances are it’s already out of date.

The beginning of a new year is the best time to revisit and revamp your handbook—especially this year, with so many changes occurring on the HR forefront.

Including key provisions

Even in years when there isn’t a tidal wave of labor-law changes, existing rules and regulations should be reviewed and updated as necessary—preferably on an annual basis.  When revamping your employee handbook, be sure to pay close attention to these key provisions:

• Anti-harassment and discrimination policies with reporting procedures: Employee handbooks provide an excellent means of conveying the company’s equal employment policies and practices for how alleged violations must be reported.  As Supreme Court decisions have illustrated, well-drafted policy and complaint procedures to deal with harassment and discrimination issues will serve as a useful tool in limiting employer liability.  In this area, consider whether you need to amend your handbook in light of the recent ADA Amendments Act, which became effective at the beginning of 2009.

• FMLA policies clearly outlined, if applicable: Under FMLA provisions, companies with 50 or more employees must grant unpaid leave for up to 12 weeks a year for certain medical or family care reasons.  If you qualify, your handbook must spell out the leave-of-absence policy, including eligibility requirements, leave-request procedures and guidelines for when employees return to work.  As you review this particular area, it is essential that you address the recent revisions to the FMLA regulations, which became effective January 16, 2009.  These revisions directly affect how the company will manage such leaves and will likely require policy revisions.

• E-mail and technology resource policies: In an era where electronic communications are the rule rather than the exception, companies should offer a comprehensive policy that addresses the "do’s" and "don’ts" of e-mail, Internet and instant messaging use on company equipment and company time.  The handbook also should note that employees’ use of such resources may be monitored by the employer (some states require this notice).  Do not forget to address employees’ remote access to company resources, as well as their use of company-supplied cell phones, Blackberrys/PDAs and laptops.

• At-will statement: Employees should be notified that their employment is at-will and no company policy can be relied upon to alter that relationship.

• Disclaimer: Include one that states the handbook is not a contract and is subject to change.

Avoiding common mistakes

Too often, employers make several common mistakes when drafting policies in an employee handbook. Some of the biggest problem areas include the following:

• Introductory and probationary periods: Employees need to have a precise understanding of what is expected of them during this period.  This section needs to alert workers that they remain employed at-will during this time frame and the employer "can terminate without cause during the probationary period."  Be careful the language does not imply that this period is a guarantee of employment for any specific period of time.

• Discipline/standards of conduct: If you elect to outline a progressive disciplinary policy, it is essential that you reserve the discretion to skip steps based on the severity of the offense.  While there should be an underlying reason for any discipline, as an at-will employer, you should avoid building in a "just cause" standard.  Setting such a standard unnecessarily forces an employer to satisfy a heightened standard to justify the discipline.  If you opt to include a defined list of potential disciplinary offenses, you also must clearly state that it is not "all inclusive" and the company ultimately will determine when discipline is warranted.

• Vacation/sick days/paid time off: Employees need to be informed of how this time is accrued, whether it may be carried over from year to year and, if applicable or required by state law, whether it is paid out upon separation.  In some states, you may get stuck with paying out unused leave time when an employee terminates employment because of poorly drafted policy language.

• Confidential information: A common statement in many aging handbooks instructs a worker to "not discuss your wages with any other person."  However, under certain circumstances, employees have a right to discuss topics for their mutual aid and protection under federal labor law, which would include wage and benefits information. Employees may have the right to discuss this with both fellow employees and third parties, such as union representatives.

• No solicitation and distribution: Employers often permit charitable solicitations (United Way, Girl Scout cookies, etc.) in the workplace.  While serving a good purpose, permitting that to occur can subsequently preclude the employer from prohibiting union solicitation or materials in the workplace.  Given the looming presence of the proposed Employee Free Choice Act and renewed union organizing momentum, the employer must revisit the phrasing of this policy.  Don’t forget to consider how to handle electronic solicitation as well.

• Potential conflicts: Employers need to ensure the handbook does not conflict with benefits plan documents or, in the case of multistate employers, the potential variances in state employment laws.

As you draft your handbook, pay close attention to the language you use.  Don’t use too much "legalese," big or confusing words or get too technical.  Avoid "guarantee language," such as "will" or "shall." Instead, use such phrasing as "may" or "strives to" or even "will make best efforts."  Also, try not to fall into the War and Peace trap.  There is such a thing as too long, particularly when it comes to employee handbooks.

As you draft your revisions, legal counsel should be engaged to review the draft policies to ensure the company is protected.  Experienced employment counsel can identify the necessary updates, guide the company through problematic nuances and identify vague areas that could be left open to debate—or litigation.

When you roll out your revised handbook, consider going "green" with the updated installment.  In today’s electronic world, it is usually less expensive and almost always more pragmatic for the HR professional to distribute and manage the handbook electronically.  By going online with the handbook, whether via e-mail or by posting it to the company’s intranet, dissemination can occur immediately.  It also is easier to make subsequent modifications and to redistribute those revisions promptly when you offer an electronic handbook.

With even the most basic technology nowadays, employers can track the recipients’ actions and determine potentially significant information, such as whether the e-mail or posting reached the intended recipient, if and when the handbook was accessed and reviewed, and how long the employee reviewed the document.  Employers can even solicit feedback or questions related to the handbook electronically.  In addition, if done properly, the recipient’s electronic signature will carry the same legal weight as the traditional "hard copy" signature.

When it comes time to introduce the new handbook, make sure you distribute it to all employees at the same time and advise them on any policy updates or new policies added during the review and revision process.  Dropping it on them without out any explanation or the chance to ask questions sets up the company, and the new handbook, for failure.  Every employee must also officially acknowledge receipt of the new handbook.  Typical phrasing of the acknowledgement should reiterate the at-will nature of employment.  Always also include a signature and date line so you have a record that each employee has received and reviewed the document.

In short, we’re in the midst of a rapidly changing business environment.  Many of these changes reflect back into the human resources arena.  Chances are that your existing employee handbook hasn’t kept pace with these changes and likely is missing some of the newer and updated provisions that need to be added to keep compliant with the most current employment laws.

While updating the old employee handbook might not be the most glamorous thing you do all year, it is one of the most important.  Don’t delay.  If you do, you might wind up getting a call from a plaintiff’s attorney who has found a problem in your outdated policies.  Taking the preventive approach, as opposed to reactive, is always your best protection.

By Eric J. Johnson