Christopher M. Mason is an attorney with Jennings, Strouss & Salmon, P.L.C. in Phoenix, Arizona. He counsels employers and management on all aspects of labor and employment law, including traditional labor matters, such as collective bargaining and union organizing; restrictive covenants; employment discrimination; sexual harassment; whistleblowing; retaliation; wrongful termination; personnel policies and employee handbooks; reductions in force; trade secrets; restrictive covenants; duty of loyalty; drug and alcohol testing; and other state and federal laws, rules, and regulations. Mason is also an experienced litigator, representing clients in Arizona, federal, and appellate courts, as well as before administrative agencies, including the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, the Arizona Civil Rights Division, and the Department of Economic Security. Contact Mason at firstname.lastname@example.org. Visit employmentlawtimes.com.
Just as with a finely crafted building, an employee handbook requires a level foundation, firm support and an eye for detail. There is no “standard” handbook and no two should be exactly alike. Employers should think twice before downloading a form handbook from the internet or “borrowing” a handbook from another employer. Variations in state, city and county laws, industry standards and employer practices necessitate customized policies. Not all material will work in every jurisdiction, and written policy should be dictated by the actual practices within a workplace, not the other way around.
Before putting pen to paper, employers should understand the purpose of a handbook. It is not a contract. It is not a means unto itself simply to comply with law or a repository for legal jargon. Rather, a handbook is a statement of the employer’s workplace expectations. It should be designed to provide employees with insight into what is required in the workplace. A handbook should also make employees aware of their obligations when maneuvering through the often confusing employment landscape. Certainly, it should include policies that are mandated by law and help establish important legal defenses; however, its primary purpose is to serve as a resource that explains the employer’s actual workplace practices and real-life standards.
When crafting policies for handbooks, employers must understand the requirements at the federal, state and local levels. Some laws require employers to put certain requirements in writing, even if they are already reflected on the workplace posters in the breakroom. Equal employment and non-discrimination policies generally fall within this category.
Conversely, there are many existing employer policies that are unlawful, such as those that prohibit employees from discussing workplace issues, including their compensation. This type of policy has been held unlawful by the National Labor Relations Board (NLRB) for decades. Policies that interfere, even indirectly, with an employee’s ability to engage in any type of protected activity could create potential liability for the employer. Where employers have an interest in assisting employees with resolving workplace issues, policies should create an additional avenue by which an employee may direct a concern, rather than a roadblock against the exercise of protected rights. For instance, an “open-door” policy helps notify employees that they can address their concerns directly with their employer—that is, if they choose to do so. Policies mandating that employees meet with a manager before filing any sort of legal claim may interfere with legal rights.
In addition to policies either required or prohibited by law are the policies that all handbooks should include for the employer’s protection. Standard items in a handbook include at-will employment disclaimers, a statement that the handbook is not a contract and may be modified at any time (what is referred to in Arizona as a “Leikvold Disclaimer”), and an acknowledgment page for an employee to sign. Handbooks should also describe the employer’s anti-harassment rules and harassment reporting policies, pay practices, employee benefits, leave policies, employer property expectations, drug and alcohol prohibitions, and health and safety requirements.
Another policy employers should consider adding to their handbooks is a leave policy consistent with the Family and Medical Leave Act (FMLA). Not all employers are bound by the FMLA; however, if they are, employers should have a comprehensive FMLA policy included in its handbook. Many employers may not realize that the FMLA provides certain options for employers to follow. Failure to specify which FMLA options and practices the employer prefers may create unseen liabilities and risks.
There are also those policies that specific employers may be required to include because of their industry or nuances of their particular workplace. For example, long haul driving, airline, mining and construction employers, to name a few, have additional regulatory requirements that may need to be addressed in an employee handbook. Many construction contractors and subcontractors should include detailed safety procedures and protocols, and may need additional policies to comply with terms of their work contracts. Additionally, many employers perform work, either directly or indirectly, for the government, which may subject them to affirmative action or prevailing wage obligations. Policies relating to these practices and requirements often must be included in an employee handbook.
Other policies, such as those relating to confidentiality, telecommuting, moonlighting, workplace conduct, attendance, background checks and separation are often preferred, but have varying degrees of applicability depending on the workplace. For additional policies or practices beyond that, the best rule of thumb is to follow the adage that less is more. While additional polices may be included, they should be brief and should avoid committing to certain standards or making promises not required by law.
Aside from these additional, industry-specific, mandatory and preferred policies, many employers may wish to include secondary or optional policies that reflect their workplace character. There is nothing wrong with doing so, keeping in mind that they should not make unnecessary promises. A good place for these types of employer-character descriptions is in the introduction, through a discussion of the company and its history. Once employers understand the legal requirements, and identify their preferred and secondary policies, they must ensure that all of their policies reflect their actual practices.
Often, employers’ policies differ substantially from their actual practices. It is not uncommon for employers to change their practices to improve the workplace or update policies to comply with new laws; however, those changes need to be reflected in both areas. When making such changes, it is imperative that employers update their handbooks. Failing to do so puts the employers at risk of violating their own policies and, in doing so, opening themselves to allegations of unlawful employment practices and claims of discrimination.
Employers will reap what they put into their policies and employment handbooks. They should consider evaluating handbooks and policies in their industries, but strictly as resources. They should also consult with human resources and employment law professionals. While there are a variety of resources available through the Internet such as the Small Business Association and local Chambers of Commerce, employers should only utilize them as a starting point. Form policies must still be reviewed and revised for legal compliance and consistency with actual workplace practices. Dutiful commitment to the process will be evident in the final handbook construction.