There have been previous posts on the subject of employee handbooks.  It’s one of those subjects that should be addressed from time to time.  It’s also one of those subjects where a variety of opinions exist–among lawyers and human resources professionals.  I’m going to give you some of my opinions.  If some of them disagree with what you’ve always thought, check with others.  Also, there’s more than one way to skin a cat, as we all know.

Consider the following questions and answers about handbooks:

Q:  Is there a law requiring that you have a handbook?

A:  No.

Q:  If you have a handbook, will you be in a better position to prevent or defend an employment lawsuit?

A:  Not necessarily.

Q:  Then why go to the trouble?

A:  First, every employer has written employment policies. They may be scattered throughout the company in the form of memos. They may be posted on bulletin boards as responses to questions raised by employees. They may be in a binder collecting dust on a shelf. But they are there–somewhere-–whether you remember they are there or not.

That being the case, they should probably be in the form of a handbook.  In other words, you make sure you know exactly what and where your employment policies are.  Since you have policies anyway, make sure they are understandable, up to date, and legally defensible–in a handbook.

If you take the time to actually place your personnel policies in a handbook, it’s more likely your policies will do a better job of keeping your employees informed of what they’re expected to do. Moreover, while not guaranteeing success in preventing or winning an employment lawsuit, a handbook that has been carefully written is more likely to keep you out of trouble than a bunch of loosely collected personnel policies.

So–-all things considered–it’s better this day and time to have a handbook than not to have one.

Q:  What should be in a handbook?

A:  There’s no magic answer. It’s really up to you, depending upon your business, the number of employees you have, and what your practices have been in the past.

However, there are a wide variety of subjects which are normally covered in an employee handbook:

• a brief history of the company

• a statement of the company’s purposes or goals

• an equal employment opportunity or nondiscrimination statement

• normal work hours, meal periods, and breaks

• absenteeism and tardiness policy

• safety rules

• health, life, dental and/or other insurance

• vacations and holidays

• leave of absence policies, like sick leave, FMLA leave, bereavement leave, personal leave, military leave, jury duty leave, etc. (and remember the Family and Medical Leave Act requires you to have an FMLA policy in your handbook if you have a handbook)

• e-mail and telephone policies

• policy concerning the company’s monitoring (electronically or otherwise) employees while they are at work

• progressive discipline policy, including termination policy

• pension and/or profit sharing plan

• smoking policy

• drugs in the workplace/drug testing policy

• workplace harassment policy

You may think of other items as well. Again, what you include is, generally speaking, up to you.

Q:  How often should a handbook be reviewed?

A:  Once a handbook has been prepared, it’s important that you obtain a legal review of its contents to make sure that all laws (federal and state) have been taken into account. Then, once a year, you should have another legal review to make sure that everything is still okay.

But a legal review isn’t all that is necessary. On an annual basis, you should review the handbook to make sure that it’s still factually correct. Policies do change, and if you have a handbook, those changes should be made as they occur. If a handbook is factually inaccurate, it can cause just as much of a legal problem for you as can an outright illegal statement in the handbook.

Q:  Are there provisions that should be avoided?

A:  If you have a handbook, it will undoubtedly play some part in any employment claim or lawsuit filed against you. Therefore, it’s important to pay careful attention to what your handbook says–-and in this regard, there are a few handbook provisions to beware of.

As a general rule, you should avoid the use of language concerning long-term employment, permanent employment, uninterrupted employment, continued employment as long as a job is done satisfactorily, and the like. This kind of language could imply something more than an indefinite or an at-will employment situation.

If you’re a non-union employer, you should reconsider the use of “probationary” periods of employment. The use of this term could imply that once an employee completes this period, he or she is entitled to a more definite period of employment. 

Rather than calling the first 30, 60 or 90 days of employment the “probationary period,” it may be better to refer to this time as the “introductory period” of employment during which an employee learns about the job and receives closer supervision and during which all benefits of regular or full-time employees may not be available.

If the term “probationary period” is used in a handbook, it should be clearly stated that after the probationary period expires, employment is still on an indefinite or at-will basis.

You should avoid stating that employees will be terminated or discharged only “for cause.” While an employee is rarely terminated for no reason at all, the use of terms like “cause,” “good cause,” or “just cause” can have special significance in the law and may mean that an employer cannot terminate an employee except for a serious reason or problem.

For example, the use of this kind of term may mean that an employee couldn’t be terminated because of a personality conflict between the employee and the supervisor, because the employee has trouble getting along with fellow employees, or because an employee “just didn’t fit in”–-if the employee is technically performing his or her job in a satisfactory manner.

Also be careful about using terms like “shall” and “will.” In fact, do not use them unless you are committed to doing what the handbook says you “shall” or “will” do in every applicable situation. If you intend to allow for exceptions, then soften the language by talking in terms of “the regular procedure” and explaining how exceptions to the regular procedure will be handled.

Q:  What about statements regarding procedure and promises?

A:  You should pay close attention to language concerning any procedure specified in a handbook, including procedures that relate to grievances, terminations, promotions, layoffs, salary increases, job relocations, and severance pay. All procedures concerning these subjects should be clearly spelled out. You should think through what the procedures require, anticipate potential problems, and make changes in the problem areas. If there is a procedure, it needs to be followed, since the failure to do so will give an employee a basis for claiming “breach of contract” or “wrongful discharge,” while adherence to the procedure will go a long way toward heading off such a claim or lawsuit.

You should also be very much aware of all promises or guarantees that are made in a handbook. Don’t make promises unless you intend to stand behind them. Promises made in an employee handbook may very well be enforced by a court.

When it comes to spelling out a progressive discipline system in an employee handbook, be careful. If you say that certain things will be done before a discharge (for example, oral warning, written warning, etc.), you may be accused of violating the contract created by this handbook procedure if an employee is terminated before you go through all steps of the progressive discipline system.

Therefore, you should always include a provision making it clear that you can, in your discretion, skip any step in the progressive discipline system or decide not to use the progressive discipline system at all when an employee is discharged. (Of course, if you are a union employer and have a collective bargaining agreement, this option won’t be available.)

Similarly, if you have a “grievance procedure” in a handbook (which basically says that if an employee is unhappy or wants to complain about something, he or she should first go to the supervisor and then go on up the ladder), be sure to make it clear that this procedure doesn’t apply to the discipline or discharge of an employee. If it’s not made clear, an employee may very well claim that he or she is entitled to pursue the grievance procedure after the progressive discipline procedure has resulted in his or her discharge. Obviously, that could give an employee what amounts to two bites of the apple, while limiting your right to fire him or her as quickly as you would like.

Q:  Are there final tips?

A:  When an employee is given a handbook, he or she should sign a statement acknowledging receipt of the handbook. That way, there’s no question about whether he or she received it.

Similarly, employees should also sign a statement acknowledging receipt of any changes in the handbook during the course of employment.

Since a discharged employee may contend that your handbook is a contract and that somehow you violated the contract by discharging him or her, clearly state in the handbook that it is not a contract–-that it’s, rather, a set of general guidelines and policies to assist the employee in performing his or her job.

Your handbook should also contain a statement which specifies that it can be changed at any time in your discretion.