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Thursday, August 22, 2019
By Roberta Pike

Implementing and maintaining an effective employment manual (or employee handbook) is one of the most important ways employers can reduce the risk of employee lawsuits. These documents outline company rules and policies, and clearly state behavior and performance expectations, how to address workplace issues, and potential consequences of not following the rules.

Useful Employment Manual Should an employee commence litigation against the company or file a claim with an administrative agency after receiving a manual, it can be an invaluable weapon in defending against the claim or lawsuit—and even in defeating it. For example, if an employee is sexually harassed by a co-worker, her attorneys will have an easier time finding the company responsible if anti-harassment policies and procedures have not been clearly defined in the employee handbook. But if there is a written policy (which details how to report harassment to management), the employee will have a harder time imputing the harassment to the company.

Because each employer is unique, the use of generic, “one-size-fits-all” manuals is not advisable. It is imperative that yours meets the company’s needs, and lays out its policies and procedures.

You know what kind of work environment you want to foster, but how do you fit all of the policies, rules, and standards you want into one legally sound document—and one that won’t overwhelm your employees so they actually read it? Do you take the best pieces from other companies’ handbooks and tailor them to suit yours? Do you start from scratch and build your manual from the ground up? Regardless of how you approach it, the U.S. Small Business Association has some helpful tips for the material your handbook should cover, which can be found at 1.usa.gov/1Noh0JZ. Just don’t forget to run the final product by your attorney to ensure that it adequately protects your livelihood.

Key Provisions
At minimum, your manual should contain a statement concerning the employment relationship. Most are “at will,” meaning they may be ended at any time for any non-discriminatory reason (or no reason at all) by either party. Your handbook should clearly state that, absent a written contract of employment, the relationship is terminable at will.

Another must-have is a set of policies prohibiting discrimination and harassment, affirming the company’s commitment to equal employment opportunities. With respect to discrimination and harassment, your manual should provide guidance as to what types of conduct constitute either offense. It must clearly state that such behavior is both prohibited and unlawful, and that any such impropriety experienced or witnessed by an employee must be immediately reported.

It is crucial that procedures for reporting discrimination and/or harassment are clearly spelled out. Employees must know who to contact and how to contact them; they must also be provided with alternate contacts, as the primary contact may be the subject of a complaint. Employees should be assured all grievances will be thoroughly investigated, and they should receive confirmation that the company will not retaliate against any employee who registers a complaint, even if it is ultimately determined to be unfounded.

As for equal employment opportunities, your handbook should spell out the company’s commitment to providing such opportunities, and state that it does not discriminate on the basis of sex, age, religion, race, national origin, veteran’s status, disability, sexual orientation, or any other legally protected category.

To ensure that no one can later claim ignorance of your policies, it is important that employees are required to acknowledge receipt of their manual in writing. This is typically done by including an acknowledgment page in the back, which the employee tears out, signs, dates, and submits to management for placement in his personnel file. The acknowledgment should state that the employee: has been given a copy of the manual; has read and understands it, including policies against discrimination and harassment; and agrees to abide by all of the expectations included in the handbook. A manual that has been tossed in a filing cabinet and was never read by employees affords the company scant protection and is literally not worth the paper it is written on.
"Because each employer is unique, the use of generic, ‘one-size-fits-all’ manuals is not advisable."
Other Recommendations
The following are other provisions to consider including in your employment manuals:

Expectations: The types of conduct you want to see from your employees—and the types you don’t.

Probation: If there is a probationary period, state how long it is (and that it may be extended if necessary), and state the consequences of failing to meet the company’s expectations.

Wage and salary policies: Detail employment classifications (full-time, part-time, etc.), days and hours worked, how hours are recorded, overtime policies, how pay errors are addressed, etc.

Work and attendance policies: Detail policies governing absences and lateness, attendance issues, breaks, meal periods, etc.

Personal/sick days, holidays, and vacation policies: Detail who is eligible for paid time off and when, what holidays are observed, and any restrictions regarding them, etc.

Leaves of absence: Specify who may take leave, and for what purposes. Inform employees of their possible entitlement, if eligible, for leave pursuant to the Family and Medical Leave Act (and in certain states, those analogous laws).

Insurance coverage/medical benefits: Inform employees of their coverage under the company’s unemployment, workers’ compensation, and disability policies. If health insurance is provided, set forth the employee’s required contribution.

Privacy policies: Employees should be informed of the employer’s right to monitor and/or record telephone conversations, view emails and computer files, and inspect desks, lockers, and packages.

Proprietary information: Notify employees that they may not copy documents, files, or data containing proprietary company information.

Social media policies: Outline what is and is not permissible. For example, employees should be prohibited from transmitting derogatory remarks about individuals and competitors. Carefully draft social media policies, as attempts to stifle employee commentary about workplace conditions can run afoul of the National Labor Relations Act.

Disciplinary procedures: If rules are broken or procedures disobeyed, employees should be informed how those violations will be addressed, and with what potential consequences.

Drug and alcohol policies: Employees should be placed on notice that the use of alcohol and illegal drugs (and the abuse of legal drugs) is prohibited during working hours.

Cellphone policies: Policies governing cellphone use in the workplace should be clearly spelled out.

Conclusion
The foregoing should not be construed as a recitation of every component that belongs in your manual. Each company is different, and, thus, their manual should be customized so that it properly places employees on notice of the company’s policies, procedures, and rules, as well as the consequences of not complying with them.
"A manual that has been tossed in a filing cabinet and was never read by employees affords the company scant protection and is literally not worth the paper it is written on."
When a violation does occur, a properly drafted manual provides a roadmap for management in regard to addressing the infraction. If a lawsuit or administrative claim should ultimately ensue, the manual serves as a crucial defense tool. It verifies that the company took steps to prevent the complained-of conduct, and that it established procedures to put a stop to any such conduct that it learned of.

Regardless of your company’s size or its number of employees, anyone who manages a business in today’s litigious society should have an employment manual for their company and make sure it is distributed and implemented. Every employer should ensure that their staff acknowledges in writing that they: 1) have received a copy of the manual; 2) understand what it says; and 3) agree to abide by the manual’s terms as a condition of their employment. Disclaimer: The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.    [CD1215]
Roberta Pike is a partner with Pike & Pike Law Firm in Bellmore, N.Y. She may be reached at rcp@pikeandpike.com