What's the One Thing Missing from Most Employee Handbooks?

by JD Supra Perspectives
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In your experience, what's the one thing most employers overlook when putting together an employee handbook? The answer to that question depends on whom you ask - and, for a legal perspective, we put it to leading employment lawyers writing on JD Supra. Here is what we heard back.

How does your employee handbook fare with this list of must-have items?

1. A Non Solicitation Policy

From Mark J. Neuberger, of counsel with Foley & Lardner LLP: "The one thing missing from many employee handbooks that I review is an effective and detailed non solicitation policy. Many employers do not realize that an effective non solicitation policy  is one of the most effective tools in thwarting a union organizing campaign. Many employers dismiss them, especially those employers in white collar environments, by thinking 'it can never happen here'. But when it does, it is often too late. The law under the National Labor Relations Act, which by the way is not just limited to unionized workplaces, is somewhat complex in what an employer can and cannot do in limiting employee solicitation, especially in this age of email and social media. Employers should take the time and invest in competent professional advice to craft a non solicitation policy that will meet their needs."

2. A "Termination When Unable to Work" Provision

From Joshua Hawks-Ladds, chair of the Labor, Employment Law and Employee Benefits Department at Pullman & Comley: "One thing typically missing from most employee handbooks that should be included, if such a policy is permitted in the employer’s jurisdiction, is a policy that permits an employer to terminate an employee after the employee becomes disabled and unable to work for a period of time - typically a period that is at least as long as that provided for in the state or federal Family and Medical Leave Act. Connecticut, for example, permits an employer to draft a provision terminating an employee if that employee is unable to perform his/her job due to a disability after a reasonable amount of time, so long as the policy is reasonable and uniformly enforced. Such a provision clarifies the fact that the employee will be required to formally separate from the company once he or she exceeds the company’s leave allotment. Thus, the employee knows that his/her employment relationship has ended and he/she must reapply for employment if his/her condition improves. The employee, therefore, can go on COBRA or unemployment (if appropriate). And the employer knows that it can replace the disabled employee at that point. Such a policy clarifies the parties’ respective rights and obligations and is very useful in such circumstances."

3. A Social Media Policy

From Dan Handman, partner in Hirschfeld Kraemer LLP's Los Angeles office: "If there is one policy that employers need, but do not have often enough, it is a social media policy. Keep in mind that the social media phenomenon is less than 10 years old, but today there are over a billion people in the world using social media and many of them use social media at work regularly.  Because the emergence of social media is so new, employers have been slow to adopt social media policies and conduct social media training for managers. While federal government agencies, especially the National Labor Relations Board, have been very active in regulating the contents of social media policies, the law is still very unsettled. I advise my clients to have a social media policy that tells employees what work-related topics are off-limits and the tone they expect for work-related posts, but at the same time they should have policies which communicate their respect for an employee’s right to use social media for their own purposes."

4. A Focus On Employer Benefits

From Tina Bengs, a shareholder in the Chicago office of Ogletree Deakins: "Most employers write their handbooks focusing only on the goal of accurately explaining to employees each policy, benefit, and practice of the company. While there is definitely a benefit to the employer in providing these accurate explanations, the one thing I find that is routinely missing is a focus on a second goal - ensuring the handbook is beneficial, not detrimental, to the employer.

Many times the first goal results in a very lengthy employee handbook that can be cumbersome, if not impossible, to maintain. Having such a handbook can result in significant liability to the employer, especially if the policies become outdated to the point of violating new laws, or the policies are no longer enforced as written due to company changes. Focusing only on the first goal can also result in verbiage in the handbook that has the unintended result of 'tying the hands' of the employer, eliminating its discretion in how it enforces its policies. This can be caused by something as simple as using the word 'shall' instead of the word 'may' in describing the action the employer might take if a policy is violated, or by providing a very rigid progressive discipline policy that does not allow the employer to utilize discretion in imposing a more severe (or even less severe) level of discipline when facts warrant a different result than the policy provides.

Along these same lines, when an employer is updating its handbook based on new laws or changes in procedures, the employer should also consider changes based on employment issues that arose since the last handbook update, especially where the handbook did not benefit the employer or where the handbook actually hampered the employer in addressing the employment issue. For example, if the employer has experienced a significant increase in attendance issues despite having an attendance policy, the employer should re-evaluate the policy to ensure it is actually designed to meet the employer’s goals for attendance. Or, if the employer has experienced adverse results or rulings on claims brought by employees, whether for discrimination allegations, unemployment claims, or even worker’s compensation claims, the employer may benefit by altering, adding to, or deleting provisions in the handbook to put itself in a position to establish a defense that may be warranted had the handbook contained different wording. Bottom line, a handbook should be a valuable tool for the employer - - not only by providing an accurate resource of information for employees, but also to ensure that the employer can operate in a manner that meets its business goals and that protects itself from adverse results of employment claims caused merely by the unintended results of a handbook that was not reviewed with an eye toward benefiting the employer."

5. A Summary of the Most Important Policies

From Jennifer Sandberg, partner at Fisher & Phillips LLP in Atlanta: "Employee handbooks should contain at least a summary of all of an employer’s most important policies. Unfortunately, many employers issue a handbook and then also issue a series of 'stand-alone' policies/procedures on other topics that are not covered in the handbook. This two step process can lead to confusion for both the employee and the employer about what is the current or controlling document and sends a mixed message to employees about which policies are 'the most' important. The employee handbook should be a one-stop-shop for an employee to obtain a full overview of the behavior that the employer expects. While an employer may also maintain more detailed policies or procedures (typically for managers' reference), the handbook should provide a clear overview of all the information the employer wants to communicate to an employee."

6. Confidentiality Provisions

From Katherine Parker, partner in Proskauer's Labor & Employment Law Department: "Handbooks that have not been updated in some time most likely will need to be updated to include more tailored provisions about confidentiality to ensure they are not deemed over broad under new guidance from the NLRB. Organizations, particularly those that are non-unionized, may not be sensitized to the applicability of the NLRA to their business."

7. An Accommodation of Disability and Religion

Again, Ms. Parker at Proskauer: "Another important policy that is often not included is an accommodation of disability and religion. Businesses often assume their EEO policies are sufficient and do not consider the benefit of having procedure to ensure consistency in approach and to ensure employees are aware that requests for reasonable exceptions to other policies in the handbook may be requested and granted if they do not impose an undue burden on the business."

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