Labor & Employment Law

So let?s take a look at what I call the top 10 handbooks mistakes.

1. The ?form? or plagiarized handbook.

Form handbooks are just what they claim to be: forms. They are not designed to meet your business needs. Many companies will buy a ?form? handbook, print it out, and never read it. After all it must be ?legal? if they sell it at the local office supply store, right? Worse yet, companies will decide to create their own handbook by plagiarizing all or portions of handbooks used by competitors on the theory that if they use it it must be o.k. These approaches are recipes for disaster. For a handbook to be effective it must communicate management?s expectations to its workforce. Those expectations cannot be conveyed if management never reads the handbook and never considers whether particular portions of the handbook will work for the company. For example, if your handbook sets forth a progressive discipline policy but you know your supervisors will not follow it, then the policy is meaningless but may be used against you in the context of a wrongful termination lawsuit.

2. Failing to have a policy that addresses discrimination and harassment in the workplace and that provides a reporting mechanism.

We all know that discrimination and harassment are prohibited. Hopefully, you know that your handbook should address these issues. I never cease to be amazed at how many employers tell their employees, in the handbook, that discrimination is prohibited, but then never tell them how and to whom a report of discrimination should be made. As a consequence, these employers deprive themselves of potential defenses in the event of a lawsuit or administrative agency investigation and increase the likelihood that an employee will consult an attorney to remedy their problems.

3. Failing to have an ?at will? disclaimer.

If your employees are truly at will employees then say it in your handbook. More importantly, make it clear that as an at will employee they are free to terminate their employment at any time, for any reason, with or without notice, just as the company is free to terminate the employment relationship at any time, for any reason, with or without notice. The disclaimer, like all critical policies, should be signed by the employee.

4. Failing to reserve the right to change the policy without notice.

Let?s face it, employees look at the statements contained in the handbook differently than you do as the owner of the company. To employees, these are promises. To you they probably are considered guidelines to follow but don?t view them as etched in granite. If that is the case, then tell your employees that these policies are guidelines and can change at any time without notice.

5. Having a probationary period.

When I see the handbook from a company that tells their employees that they have a probationary period, my first question is, ?Are your employees at will.? I understand the rationale for a probationary period. From the employees? perspective, the probationary period is a period of at will employment during which they can be terminated with or without cause. As a result, once the probationary period is completed, employees believe the only reason they can be terminated is for cause. If your employees are truly an at will employees, you can terminate that employee at any time, for any reason, with or without cause, as long as you don?t terminate them for an illegal reason. The probationary period is unnecessary.

6. Failing to leave wiggle room in the discipline policy.

Discipline policies can be helpful in conveying your expectations to the workforce. Many discipline policies try to classify offenses as minor and serious. The latter will result in termination and the former will not. The question then becomes, ?How many minor infractions does it take to constitute a major policy violation?? By being too detailed, again you are placing yourself in a box. The same holds true with regard to progressive discipline policies. Many of you have elaborate progressive discipline policies. Usually, the problem is not with the policy but with its implementation. If there is a concern about policy implementation, you would be much better off to avoid having such a policy. Remember a good lawyer can use your failure to follow the policy against your company.

7. Failing to assure consistency between the policy and company practice.

Read the employee handbook. Read it again. Read it one more time. Give thought to the policies. Is the handbook internally consistent? Do the policies in your handbook mirror the way your company does business? If your answer is no to either one of these questions, you should rethink the policy or practice.

8. Failing to review your policies.

Now that you have an employee handbook, you must review it periodically to determine if it is consistent with the manner by which you conduct business or with applicable law. For example, many employers in Washington are still using policy manuals that make no mention of protection against discrimination based sexual orientation even though that law became effective last year. Your failure to review the employee handbook on at least an annual basis can be the recipe for a future disaster.

9. Making broad statements that make people feel ?warm and fuzzy.?

The employee handbook is supposed to communicate your company?s expectations of employee behavior. It is not promotional material designed to tell your workforce about how great you are or how tolerant the company will be because ?we are one big family.? Leave the ?Rah Rah? statements for the company picnic and let the policy convey expectations and you will avoid heartache.

10. You can pay your lawyer now or you can pay your lawyer later.

Many years ago, Fram had an oil filter advertisement. In the commercial, a mechanic would tell his customer, ? You can pay me now or pay me later.? In other words, by being cheap and failing to install a good oil filter a customer would end up paying for costly engine repairs in the future.? The same holds true with a handbook. Unless you have a lawyer on staff, have the handbook reviewed by your lawyer to determine whether it is compliant with state law or makes promises that need not be made. Yes, it will cost you money. It will, however, be far less expensive than defending a lawsuit.

Nothing in this blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature. Nothing can substitute for a consultation with a legal professional who can address your particular legal concern.