Our next installment of the Legal Minute features a primer on employee handbooks.
A good handbook serves several important functions: it can explain policies and procedures; it can serve as a resource for front line employees and supervisors; it can educate about appropriate behavior and discourage inappropriate behavior; it can serve as an introduction to organizational culture and expectations.
Unfortunately, employee handbooks can also create liability exposure, especially if they contain policies and procedures that are inconsistent with state and federal law. Some handbooks contain too many polices and rules, thereby robbing employers of the flexibility needed to address different situations. Some handbooks are boilerplate documents that are copied from the Internet. Because of these concerns, some employers actually refuse to adopt an employee handbook. I understand this approach, but I certainly don't recommend it. You need a handbook that is relevant, current and legally compliant.
With this background, noted below are my suggestions for a useful handbook that supports your workplace:
1.
Avoid copy and paste handbooks. Your employee handbook should reflect your organization's operational realities and culture. Cookie-cutter policies are meaningless.
2.
Include disclaimers. Your employee handbook should be a guide, not a contract. Many employers include promises in their handbooks without including language that allows for changes or modification. In certain circumstances, an employee may be able to claim that they are not at-will employees. For example, most employers have a progressive discipline policy. If you do not include a provision that allows for accelerated discipline, then your failure to follow progressive discipline might support a breach of contract claim.
3.
Drop probationary language. Many employers include an introductory probationary period in their handbooks, but they shouldn't. This provision usually causes more harm than good. The law does not afford any special recognition or protection for probationary periods. Discrimination claims during the probationary period are just as actionable as discrimination claims afterward. Moreover, probationary periods create a sense of employment security after the employee completes the probationary period, and in some cases West Virginia trial courts will recognize this as a form of employment security. The better approach is simply to drop these provisions.
4.
Avoid oppressive social media policies. Most employers struggle with monitoring and regulating social media activity by employees. Certainly, healthcare providers should be able to expect their employees to protect patient confidentiality, but this concern often prompts employers to adopt overly restrictive social media policies that run afoul of employee rights under Section 7 of the National Labor Relations Act ("NLRA"). Many employers are surprised to learn that the NLRA applies to their non-unionized workforce.
5. Adopt an anti-harassment policy! You need to have an anti-harassment policy, and it needs to be written in plain English. The law prohibits certain forms of harassment, and your organization may want to prohibit other forms as well. Importantly, your anti-harassment policy needs to explain reporting obligations and procedures. And you need to train on it. The anti-harassment policy should be the cornerstone of your handbook.
6.
Avoid rigid progressive discipline policies. Progressive discipline is typically the best approach for routine issues, but you want to avoid a policy that contains rigid steps. Some employers borrow grievance procedures from collective bargaining agreements and use this as a basis for their progressive discipline policy. The problem with this approach, however, is that it creates administrative hurdles and frequently allows employees to claim that they were treated unfairly if the employer deviates from the process.
7. Publish and train! Publish your handbook. Make it available online, but also keep a hardcopy handy. As you modify your employee handbook, take the time to train your workforce, and do so periodically. Create opportunities to explain the handbook and to allow employees to ask questions.
8.Update! Employee handbooks should be organic. Your organizational priorities will change and the law will change. At a minimum, employers should review their employee handbooks every 3-4 years. Doing so will allow you to incorporate any significant changes imposed by state or federal law.
As we prepare for the New Year, consider dusting off and updating your employee handbook. If you don't have an employee handbook, now is the time to adopt one!
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Justin M. Harrison is a labor & employment lawyer at Jackson Kelly PLLC. He is available for consultation through a special retainer relationship with the WVPCA. Justin can be reached at (304) 340-1358, and you can follow him on Twitter @wvhrlawyer.
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