By SUSAN PRINCE, J.D.
BLR Managing Editor
SAN DIEGO--Lawyers Allan Weitzman, Anthony Oncidi, and Paul Salvatore covered just about everything you'd need to know about putting together an employee handbook on Monday, in a presentation at the Society for Human Resource Management's (SHRM) Annual Conference and Exposition.
Salvatore began by explaining that employee handbooks help prevent liability by addressing problems before they occur and limit liability in those cases where claims are brought anyway.
The attorneys discussed seven important principles that employers should consider when drafting an employee handbook.
First, make sure the employee handbook is not an employment contract. When they are not drafted properly, employee handbooks are often interpreted by the courts as either implied or express contracts for employment. When an employer outlines progressive discipline measures or distinguishes between probationary and permanent employees in the employee handbook, the employer is walking a dangerous line.
Salvatore stressed that employers should include disclaimers to help ensure that a handbook is not interpreted by the courts as a contract. They should obtain receipts from every employee, in print or electronically, stating the employee has read the handbook and understands that it is not an employment agreement.
Second, plainly state the employer's rules and procedures. These should include the following:
The third principle is to clearly describe the policies designed to assist employees, such as FMLA leave; pregnancy, disability, and child care leave; short term disability leave; military leave; employee assistance programs; vacation time, holidays, and personal days; and flex time.
- Access to personnel records
- Anti-nepotism and no spouse rules
- Searches on employer property
- Employee cooperation during in-house investigations
- No solicitation rules
- Travel policies
- Workers' compensation
- Performance evaluations
- Payment of wages
- Employer property
- Deductions from pay
Fourth, communicate the company's commitment to equal opportunity employment. Having a written policy and an effective complaint procedure will help limit an employer's liability if a claim is brought against the company, Weitzman said. He added that once the policy is in place, the employer needs to train supervisors to correctly follow the policy.
Fifth, employers need to set guidelines for termination of employment in their employee handbooks. This includes addressing the following issues:
Sixth, try to look at the handbook as a place to develop cutting-edge policies. In today's world, Oncidi said, this includes policies on privacy, such as employer inspection of email, Internet searches, Web logs, and cell phone usage.
- Required notifications (such as COBRA)
- Severance pay policies
- Post employment references
- Grievance or complaint procedures
- Arbitration agreements
- Jury trial waiver agreements
Lastly, the lawyers warned that it is very important that employers incorporate federal, state, and local legal requirements into the handbook. Federal and state employment laws often differ, and when they do, the employer must follow the law that is most beneficial to the employee. Therefore, it's essential to know the difference between the laws, know when each must be applied, and incorporate the right ones into the employee handbook.