Each year, new employment laws go on the books and courts write thousands upon thousands of decisions interpreting old laws. Yet, year after year, many HR professionals reach up onto a dusty shelf to hand new employees the same old employee handbook someone wrote years ago—too often without a second of consideration whether the contents still pass legal muster.
For example, I would be surprised if more than 10% of employee handbooks now in circulation cover new employment law issues such as genetic information privacy and the rights of employees with military family members.
Annually updating your employee handbook is one of the easiest and most cost-effective measures you can take to help your organization stay in compliance.
Follow these general guidelines—and include the five most critical policies—to make sure your employee handbook promotes your business objectives and minimizes your litigation risk.
General practical guidelines
Make it readable. A handbook is only as good as the language in it. Audience is key, and your employees are your handbook’s audience. It is not a complex legal document and it shouldn’t read like one.
Thus, while lawyers might write your handbook (and should at least review it), it should be written so all employees can understand it. Note: Clearly, if your workforce is bilingual, your handbook should be, too.
Customize it. Forms are a great starting point when developing a handbook, but danger lurks when they become the end point. Templates for handbooks and policies are easy to find. They are all over the Internet. Relying on such forms may save a few dollars in legal costs. After all, why pay a lawyer several hundred dollars to draft a form when one is available free? A lawyer must have reviewed it at some point, right?
Not necessarily. Even if a lawyer did review a form at some point, it may not be up-to-date, it may not have been reviewed for a specific state’s particular employment laws and it certainly wasn’t reviewed with your company’s specific legal situation in mind. Forms are merely clean slates that can be adapted, but they are not perfect for any and every situation.
Tailor your handbook to your industry, size, location and—most important—corporate culture.
Communicate culture. Don’t make the mistake of using your handbook as a simple summary of policies and benefits. It is a tool to set corporate tone and communicate corporate culture.
Generalize. Employee handbooks do not set binding policy. Instead, a handbook merely establishes guidelines that can be followed with greater or lesser degrees of rigidity, depending on the situation. A well-drafted handbook should leave the company with sufficient discretion to deviate when circumstances dictate, or change course completely when necessary.
5 policies your handbook needs
No handbook is complete without the following five policies:
1. At-will employment disclaimer. I can’t imagine anything worse than an employee being able to successfully claim that an employee handbook created a contract with the employer or provided something on which the employee could otherwise reasonably and justifiably rely.
If nothing else, every employee handbook should have a clear at-will disclaimer, stating that the handbook is not a contract, that employment is at-will and that employment can be terminated at any time for any reason, with or without cause and with or without notice.
Similar language should appear on the handbook receipt forms that employees sign and are placed in their personnel files.
2. Equal employment opportunity and anti-harassment policy. It’s impossible to take advantage of the Faragher-Ellerth affirmative defense for harassment liability without a policy employees can use to address harassment. The policy should define what types of conduct are prohibited, inform employees to whom and how they can complain of harassment and guarantee that they will not experience retaliation.
3. Nonsolicitation policy. It is vitally important to safeguard against nonbusiness uses of company property. Any nonsolicitation policy should cover written and oral solicitations, in addition to e-mail and computer systems.
4. Technology-use policy. A comprehensive technology policy guards against improper employee use of email and computer systems, limits personal uses of company property, tempers employees’ privacy expectations and protects against potential harassment. This is a versatile policy that no business should be without.
5. FMLA leave policy. The FMLA covers all employers that have employed 50 or more employees within 75 miles over 20 weeks out of the preceding 52 weeks. If your company meets this coverage criterion, the law requires your handbook to contain an FMLA policy. Otherwise, consider a general leave-of-absence policy.
