Legal Protection from Employee Manuals or Handbooks

Legal Protection from Employee Manuals or Handbooks

An employee manual also communicates important state and federal laws surrounding employment. It puts these items into a clear and concise written document. The employee handbook or manual needs to clearly define the expectations of employees and management. It can also be a vital asset that helps to protect the company against legal claims of wrongful termination, unfair treatment, discrimination, harassment, or other charges. Some federal and state laws require certain employment policies be in writing. However, there is no law that requires an employer to provide employees with a handbook. Nevertheless, there are many good reasons, both legal and non-legal, to publish a handbook. A handbook facilitates the uniform distribution to all organization employees and is a common repository of organization policies and procedures. Some policies are required by law to be posted in the workplace. It will be hard to prove in court if any employee read a particular communication on the bulletin board or was notified verbally by a supervisor. While employee handbooks may contain policies on everything from employee benefits -- sick leave, vacation, holidays and insurance -- to performance and discipline policies, there are several essential exposure-limiting policies that should be included.

Equal Employment Opportunity Policy

All employers are required by federal and state law to provide a workplace with equal employment opportunities for all persons. A written equal employment opportunity (EEO) policy is a way for the organization to acknowledge that it embraces the law and to inform employees of its non-discrimination policy. The EEO policy should state that the organization believes that all persons are entitled to equal employment opportunity. This statement can specifically list all the protected classes -- race, color, religion, sex and so on -- or can indicate generally that the organization does not discriminate against employees protected under the various federal and state laws.

"At-Will" Employment Disclaimer

An employee handbook should contain an "at-will" employment disclaimer. In the US, the relationship between the employer and employee has traditionally been governed by the doctrine of "employment at will", where there is a presumption that an employee's relationship with his or her employer is intended to be at-will rather than contractual. This means that the employee or the organization may terminate the employment relationship at any time, without notice, for any lawful reason.

A common allegation brought by terminated employees is that the employer breached an implied contract of continued employment. A handbook disclaimer to the contrary in the employee handbook may provide a defense against such allegations and it may also dissuade a court from declaring the handbook itself a binding written contract between the employer and employee. Make the disclaimer stand out by printing it in bold uppercase letters at the beginning of the handbook.

Harassment

Accusations of harassment, including sexual, racial, and ethnic harassment, are common and can be costly. The Supreme Court has stated that an employer, at a minimum, must have certain provisions in its non-harassment policy, or it will not have a defense to a harassment claim. Communication is the key to minimizing harassment claims. The organization should send a clear message to all organization members that harassment is illegal, will not be tolerated, and those who engage in harassment will be severely disciplined or terminated. Since there is often confusion over what constitutes harassment, especially sexual harassment, the non-harassment policy should describe and provide examples of the various types of conduct that might be considered harassment. It should be made clear that the examples do not constitute an all-encompassing list. The policy should also include a detailed complaint process to report any claims of harassment to someone at the organization such as their direct supervisor, a senior executive, or the head of human resources. Employees should be able to choose from several designees because of the possibility that one of them could sympathize with the alleged harasser. Retaliation against a person who has made a harassment allegation is illegal, and the policy should state that no action will be taken against any employee in any manner for reporting or opposing any form of unlawful harassment.

Open-Door Policy

Employees who work in an environment where open communication is encouraged may be less likely to go to an attorney with their complaints. An open-door policy is the perfect vehicle for encouraging employees to air their concerns before they escalate into a major problem for the organization. An open-door policy can be a simple statement that encourages employees to discuss their work-related concerns with management or the human resources department.

Leaves of Absence

Organizations should be aware that state and federal laws require employers to provide certain types of leaves of absence for eligible employees. State laws differ, and employers may be required by law to provide leaves for workers' compensation, pregnancy disability, alcohol and drug rehabilitation, military duty, jury and witness duty, voting time and more. Many of these leave laws include specific written notice requirements. For example, the federal Family and Medical Leave Act of 1993 (FMLA) requires employers to provide their employees up to 12 weeks of unpaid leave per year for the birth or adoption of a child, or for the serious health condition of the employee or a close family member. This seemingly simple law becomes complicated due to the detailed notice requirements on the part of the employer. Failure to comply with the law can be costly and disruptive to the organization. FMLA applies only to employers who have 50 or more full-time, part-time or temporary employees within a 75-mile radius. However, there has been talk of legislation that would decrease the number of employees required for FMLA coverage from 50 to 25. The employee handbook is the perfect forum for disseminating notice of leave policies whether or not the law requires written notice. Consult with a labor and employment law attorney for the appropriate language to include in all leave policies. All of the organization's efforts in implementing a handbook may be of no benefit if a dispute arises and an employee claims that he or she never received the handbook. Be sure to obtain a signed receipt from each employee after they have had time to read it thoroughly. The receipt should acknowledge that the employee has received and read the handbook, understands its contents and agrees to abide by its policies and procedures. Keep the receipt in the employee's personnel file. This article is meant to be a brief overview of the importance of implementing an employee handbook. There are countless other policies and procedures that can and should be included in a well-drafted employee handbook. The organization can draft its own policy handbook or purchase a commercially prepared handbook and tailor it to the organization's specific needs. In either case, it is imperative that an attorney who specializes in labor and employment law review the handbook. Employment and labor laws change frequently, and an employee handbook should be reviewed and updated on a regular basis. Many federal employment discrimination statutes apply only to organizations with 15 or more employees. Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Pregnancy Discrimination Act each apply only to employers with 15 or more employees, and the Age Discrimination in Employment Act applies to organizations with 20 or more employees. However, an employee can also file suit against an employer with fewer than 15 employees under state and local discrimination statutes.

Some states and cities have laws that mirror the federal discrimination laws, but also apply to all employers regardless of number of employees. Additionally, these state and local laws may prohibit discrimination based on other factors not addressed by federal laws such as marital status, sexual orientation, smoking habits, political activities, volunteer activities and other off-duty conduct, to name a few.

Claims that allege discrimination, sexual harassment or wrongful discharge often have a variety of common-law tort, quasi contract or other state law claims attached. All employers have exposure to common-law actions brought by employees. For example, a frequent wrongful termination claim brought by employees against smaller organizations is breach of an implied or oral contract for continued or permanent employment. In this type of case, the employer intends to establish an at-will employment relationship, but the terminated employee argues that due to certain actions by the employer he or she was guaranteed employment for an extended period of time.

All employers are also subject to common-law tort claims for assault, battery and false imprisonment. These claims are often included in sexual harassment lawsuits. Other common-law tort claims that may accompany wrongful termination lawsuits are libel, slander, defamation, invasion of privacy, intentional infliction of emotional distress, fraud and negligent misrepresentation.

The bottom line is that although smaller organizations may be exempt from some federal employment discrimination statutes, they still have a considerable amount of employment liability exposure via state statutes, local ordinances and state common law.

Even frivolous suits require a vigorous defense, which can be expensive, particularly for a smaller sized organization. Don't forget to have an acknowledgement, either hand signed or electronic, from every employee, so you have a record of when they received the handbook, that they reviewed and received a copy, and that they agree to abide by it. Good employment practices, spelled out in a handbook, acknowledged by all employees and liability insurance are all ways to limit exposure and keep the organization focused on satisfying customers and growing opportunities for all employees.