Most employers have employee handbooks, but some may not realize the value of the handbook until an employee is disciplined or discharged and a creative plaintiff’s attorney raises a handbook challenge. This is especially true when handbook policies conflict with applicable collective bargaining agreements or state or federal law. Only then, does the employer find themselves, singing the employee handbook blues.
Employee handbooks are essential tools that enable employers to educate employees, provide answers to common questions, and establish a baseline for management of the employee workforce. We recommend avoiding the following mistakes, listed in no order of importance:
- Failure to consider federal or state law. Many state laws provide more stringent or broader protections for employees than corresponding federal law. Failing to provide the most favorable protection for an employee may constitute an unlawful employment practice.
- Failure to engage competent legal review. Every employment handbook should be reviewed by experienced employment legal 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 conflict with any collective bargaining agreement.
- Failure to keep policies current in light of ever-changing laws or regulations. Employment laws change frequently, both as the result of new federal or state legislation, federal or state rulemaking but also as the result of court decisions. Public employers should review employee handbooks on an annual basis and incorporate new changes.
- Failure to include required policies or including policies that are not legally required given the size of the employer’s workforce. Many employment-related laws only apply to employers who meet a certain headcount threshold. For example, the Oregon Family Leave Act applies to employers who employ at least 25 employees. The similar federal Family Medical Leave Act (“FMLA”) applies to private employers who employ at least 50 employees and all public employers, regardless of the number of employees.
- Failure to provide a pathway for public employees to challenge certain workforce decisions. Unlike private employees, public employees may have due process protections in employment. For that reason, in most cases public employers have grievance procedures as the result of collective bargaining agreements, but they should also provide a procedure for non-union employees.
- Publishing an epistle when a summary will do. Simple, straightforward and non-legalese language should be used in employee handbooks. Avoid the mistake of trying to anticipate every possible situation and writing a policy statement to handle it. More general statements instead of specific do’s and don’ts provide greater flexibility.
- Using vague, ambiguous, overly technical, or unclear language. Use a table of definitions if a common word is used as a term of art in your organization.
- Failure to include disclaimer language. Oregon is an at-will employment state and one of the most important sections of an employee handbook is the at-will disclaimer. The disclaimer tells the employee that the employment relationship is at-will and that the handbook does not create an employment contract.
- Unintentional violation of employee rights to Concerted Activity. All employees, public and private, union and non-union have a right to engage in what the National Labor Relations Act, and its state counterparts, define as “concerted activity.” This generally means acting together with other employees to improve or address working conditions – for example, discussing pay rates or bonuses, break policies, or other workplace related concerns. Employee handbooks should not contain policies which can be read, interpreted, applied or understood to limit these employee rights.
- Errors in introduction of handbook. Employee handbooks or additions and deletions should be communicated to employees as soon as they are approved and are to be effective. Employees should be required to sign a form acknowledging receipt of the handbook or any changes made.
Employers can avoid potential problems if they follow the principles here. As always, employers should work with competent employment legal counsel when making changes to employee handbooks or policies.
For more information on this topic, please contact marketing@jordanramis.com or call (888) 598-7070.
