Employee handbooks: Sword or shield?

Basic tips for creating an employee handbook

My good friend Bill called again today concerned that one of his supervisors had just authorized a newly hired field worker to take four weeks of vacation. Bill also discovered that two of the other four workers on that crew were scheduled to take vacation during the same period of time. He wanted to know if there was anything that he could have done to prevent the staffing shortfall.

I asked Bill what the vacation policy in his employment handbook said. After a long pause, Bill said, "We don't have an employee handbook." I told Bill that he really cannot blame the supervisor when there is no policy or guidance to follow. I suggested that Bill needs a properly drafted, legally enforceable employee handbook. You do too.

Employment handbooks have pros and cons. It is true that putting something down in writing can make it more difficult to change in the future. That can be cured, however. What is crystal clear is that it is very hard to enforce policies when nothing is written down, and this lack of clarity can lead to bad morale, inconsistent practices, and in the worst case, liability for discrimination. It is also important to note that some state and federal laws require that your employment policies be reduced to writing.

Your handbook does not have to be fancy or printed and bound; nor does it have to be terribly detailed. It should set out important policies clearly and unambiguously. But, remember that you can change these in the future as necessary for your business needs. In order to change policies in the future, your handbook should specifically state that you reserve the right to do so as business needs warrant.

With respect to content, there are a number of policies that you will want to include in your handbook without fail. First, to help prevent the handbook being viewed as a contract of employment, you will want to include a very specific and precise "at-will" employment disclaimer. This language makes it very clear that either party can terminate the employment relationship without prior notice or cause. This is also where you put the language reserving the right to make future changes to the handbook.

Second, we recommend that you incorporate a policy requiring arbitration of any employment related disputes. Arbitration provisions are generally upheld by the courts, and they can save you a fortune in litigation costs and actually deter some lawsuits. Third, you must include a carefully crafted policy prohibiting harassment on the basis of sex, race, religion, or any other protected criterion. Also, you will want to include policies covering leaves of absence for various purposes including vacation, jury duty, military service, and most importantly, family and medical leave.

There are other policies that you should include in your handbook. For example, you need to have a well-written policy addressing drug testing and drugs in the workplace. Also, given the rise of social media and the advent of newer technologies, you will want to include an up-to-date policy addressing computer and Internet use at work and away from work, as well as use of cell phones at work. Most employment handbooks include a policy addressing discipline and termination. We recommend that you not spell out the specific steps in a progressive discipline procedure. This is so because if a manager skips one of those steps, a disgruntled employee could seek to overturn the discipline or termination. Instead, we recommend that you craft a policy that reserves to management the right to determine appropriate discipline given the facts and circumstances.

Naturally, there are numerous other policies that you may wish to include in your handbook. These might address things like moonlighting, use of company equipment, holidays, benefits, hours of work, paydays, inclement weather, and a whole host of other potential subjects.

As a final matter, you will want to have a form by which each employee acknowledges receipt of the handbook and agreement to abide by its terms. This form should be detachable so that you can keep it in each individual's personnel file.

A well-written handbook can answer lots of employee questions and help ensure consistent administration of employment policies. If you already have an employee handbook, you should have it reviewed periodically to make certain the content is still current and lawful. If you need help drafting an employee handbook, you should seek competent counsel.