Employee Handbooks – The Basic Framework.

April 2010

From time to time this column emphasizes the importance of having an up-to-date employee handbook that reflects current changes in the law, but this column looks to a more basic issue. What provisions should a handbook include? Is it wise to try to cover every potential issue that might arise, or is it better to leave some things for future development to allow the employer to maintain greater flexibility? What are some of things to consider in putting a policy in or leaving it out?
The basic purpose of a handbook is to inform employees of some of the employer’s expectations and to provide a framework for the rules that will govern the employment relationship. It is important, for example, to let employees know that your organization is an equal opportunity employer and that you prohibit harassment, encourage good faith complaints, and will appropriately punish illegal behavior. It also is important for employees to know and understand the importance of safety, including the prevention of workplace violence. Typically, a handbook also will contain a discussion of the employer’s policies on such things as leaves of absence, standards of conduct, and discipline and termination. Some include strong mission statements.
Every handbook should have policies relating to at-will employment, equal opportunity and anti-discrimination, open door and complaint procedures, leave (including the Family & Medical Leave Act), safety and workplace violence, protection of company property (e.g., electronic media, if a concern in your facility), and standards of conduct. However, beyond the basics, there are many choices to be made. In determining what to put in or leave out, you might ask several questions: Is this a policy that is likely to change in the foreseeable future? Is it something that will be relatively easy to administer and keep track of? Should the policy be the same for all employees and, thus, be appropriate for uniform application across the board or will it depend on individual circumstances?
Consideration also must be given to the hardship that is created when repeated revisions of the handbook are necessary because the policies change. In addition to the cost of printing and reprinting a new handbook for an entire workforce, we typically see many instances in which the employer does not obtain a receipt for the new handbook. Without a receipt, the employer is hard-pressed to prove that the employee received notice of the new policies and such notice is something that many investigators ask for and want to see in the employee’s personnel file. Lack of a receipt leaves open the argument that the employee never knew about the policy and, therefore, that the employer is not really enforcing the policy but is acting for some other (allegedly illegal) reason. Indeed, regarding policies prohibiting sexual harassment, it is essential that the employer be able to establish that the employee received the handbook containing the sexual harassment policy in order to establish that the employee knew or should have known how to make known a complaint about sexual harassment.

If the employer decides to include a particular policy, it is very important that the policy be stated as narrowly as possible. We have seen situations where the handbook provides a policy that is so detailed and specific that the employer found it difficult or impossible to follow its own policy. A policy that is stated in a handbook but then not enforced is often worse than having no policy. For example, a policy that states the employer will do X within five days creates an issue (which otherwise would not exist) if the employer takes ten days or fails to follow through at all. A good plaintiff’s attorney will ask for and scour the handbook looking for such provisions. Thus, it is better to cover broad principles in the handbook and leave some of the specifics to be decided as needed by the facility. There is no law that requires a handbook to be all-inclusive and many topics are better-suited to being addressed by the orientation process, a memo, staff meeting, flyer, verbal instructions, in-service, or paycheck stuffer. There are many avenues of communication that allow greater flexibility, but there will always be a place for the well-drafted handbook.