Check your employee handbook
Changes in laws, greater awareness among employees mean the time has come to consider an update
If your New Year’s resolution was, finally, to update your employee handbook, keeping that resolution at the top of the list this year makes a lot of sense.
Your handbook is an important communication tool. Apart from spelling out the “dos and don’ts,” the handbook can introduce employees to the mission, culture, tone and management style of the organization. It can be a dry list of rules, or it can personalize a company. It can be a quagmire of information, or a big time-saver for HR to help employees answer basic questions.
How you communicate the information is just as important as what you communicate. Make the tone of your handbook your own and ensure that it covers what is most important to your culture.
Employers should continually assess that the handbook makes sense for their workplace. A handbook that is long, poorly organized and full of “legalese” is daunting for HR to update and unlikely to be helpful to employees. But some legalese is important, such as a prominent disclaimer that the handbook is not a contract, does not guarantee a job for any particular time, does not change the at-will nature of employment, and is subject to change at the company’s discretion.
A handbook cannot cover every possible scenario. Include policies that are legally required or encouraged (harassment, EEO, FMLA, wages, etc.) and key company-specific practices. But review periodically to see if a policy can be shorter, clearer or eliminated. Would an example or chart help explain the policy? If someone outside of HR reads it, do they agree that each section is necessary, clear, accurate and relevant?
An out-of-date handbook has limited use and can be a legal liability. It is important to capture legal changes affecting your workplace.
For example, New Hampshire prohibits asking an employee to reveal social media or email passwords. If making that update, look at the rest of the social media policy. Does it clarify that only authorized employees can speak for the company? Does it incorporate your anti-harassment and anti-discrimination policies? Have you considered recent warnings from the National Labor Relations Board against discouraging an employee from complaining about wages, managers and conditions of a job?
Last year, New Hampshire confirmed that employers may not retaliate against an employee who requests “flex time.” This could be a quick addition to a handbook, but is also an opportunity to check that the handbook includes appropriate rules against retaliation when employees complain about wages, harassment or safety.
Although the Affordable Care Act has been in place for years, many handbooks do not allow employees to take reasonable breaks to express breast milk in a private place. As states increase protections for pregnant workers, add family leave and clarify employer obligations to accommodate disabled workers, it is important that employer policies keep up.
If employees live over the border in a state where recreational marijuana is legal, the handbook should state the company’s stance on workers impaired by drugs. Multi-state employers should address additional protections available to those workers (such as sick leave in Vermont and Massachusetts, pregnant worker accommodations in Massachusetts and family medical leave in Maine).
The #MeToo movement will lead to scrutiny of employer responses to harassment and misconduct. Employers should confirm their commitment to equal employment opportunity, making sure that the list of protected characteristics is up to date and includes “all other characteristics protected by law.” A handbook should also describe the reporting system, prohibit retaliation and confirm that discipline will be imposed for breaches of the zero tolerance policy.
A handbook should reflect the reality of the workplace and vice versa. Does one department let employees take vacation with one day’s notice, while another department requires two weeks? Are the policies sufficiently clear and comprehensive that they can be enforced uniformly? Consistency will be key if a lawsuit arises.
And it is often a good idea to invest in a legal review for compliance and risk management purposes. Employees and their lawyers may look to the handbook to support a claim. Time spent up front to make sure that a handbook provides a roadmap of appropriate behavior, a complaint process and proper disclaimers will be important in avoiding and defending disputes.
Attorney Karen A. Whitley is a member of Sheehan Phinney’s Labor & Employment and Litigation Practice Groups.