Winter 2011The employee handbook is an essential tool, which enables an employer to educate, to provide answers to employees' most common questions, and to establish a baseline for management of the workforce. For these reasons, most employers have employee handbooks. For unwary employers the nature of the handbook is made clear only when an employee is disciplined or discharged and the handbook is challenged by a creative plaintiff's attorney. Employers can avoid unwelcome surprises and the handbook blues by observing some simple principles in handbook creation and implementation.
- Application of federal or state law: Many state laws provide broader protections for employees than corresponding federal law. Failing to provide the most favorable protection for an employee by neglecting to include such provisions in an employee handbook may constitute an unlawful employment practice.
- Competent legal review: Every employment handbook should be reviewed by experienced employment counsel. This provides an impartial, independent review of the language used, ensures that all necessary and required policies are included, and provides assurances that the language of the handbook does not unintentionally create a binding employment contract.
- Keeping policies current: Employment laws change frequently as the result of new legislation and court decisions. Therefore, employers should review employee handbooks annually and incorporate new changes in a timely manner.
- Appropriate policies: Failure to include required policies or including policies that are not legally required, given the size of the employers' workforce, means trouble. Many employment-related laws are applicable based on the size of the employer. For example, the federal Family Medical Leave Act requires at least 50 employees while the Oregon Family Leave Act requires at least 25 employees. Including references and descriptions to these acts where such laws are not applicable may give employees rights to which they are not otherwise entitled.
- Complaint process: Employees must be able to express concerns about the application and enforcement of employer policies without fear of retribution or retaliation. There must also be a complaint process for raising issues regarding harassment and discrimination.
- Brevity and simplicity: Do not publish an epistle when a summary will do. An employee handbook should be complete but not overly detailed; if it becomes a large book it may discourage employees from reading and using it. Keep the handbook simple and avoid legalese or technical language. You may want to include a definitions section to aid the employee in understanding the policies. Don't use exhaustive lists of prohibited conduct or offenses; rather, make such lists illustrative only and specifically state that the list is not all-inclusive. Avoid vague or ambiguous language.
- Disclaimer language: Oregon is an at-will employment state, and one of the most important sections of an employee handbook is a disclaimer. The disclaimer reminds the employee that the employment relationship is at-will and that the handbook does not create an employment contract.
- Unintentional violation of employee rights: Avoid the inclusion of policies that appear to be neutral but actually infringe on employee rights. For example, requiring employees to keep their personal pay and benefits confidential and subjecting them to discipline if those things are disclosed infringes on an employee's rights to collective bargaining, whether or not you have a unionized workforce.
- Introducing the handbook: Providing notice and an opportunity to be informed of the employer's policies and procedures is an integral component of the handbook. This is especially true if new policies are being introduced. The introduction of new policies or of an entire handbook should require the employee to acknowledge receipt of a copy of the policy or handbook. Such an acknowledgement should also provide that the employees understand that they will be subject to the policy or handbook, including a statement that the handbook does not create a contract of employment.