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Employee Handbooks 101: "Must Have" Provisions

Posted on Mon, Sep 09, 2013 @ 02:04 PM

Jack B. Harrisonby Jack B. Harrison

It is extremely important that employers periodically review with their employment counsel their Employee Handbook to insure that it accurately sets forth the employer’s policies and goals in a clear manner so that all employees know exactly what is expected of them as employees.  Clearly articulated policies and goals contained in the Employee Handbook can, at times, limit an employer’s legal liability by providing a valid defense to certain claims.  Below are some of the policies that should be included in every Employee Handbook.  This list is certainly not meant to be exhaustive, but is intended to provide guidance as to some important provisions that should be contained in an Employee Handbook.

Discipline Policy

Employees need to be provided with clearly articulated expectations of what conduct will or will not be tolerated in the workplace.  The Discipline Policy should set forth the steps that will be followed in the event of a disciplinary action.  Management personnel should be periodically trained on these steps and on the importance of documenting that all disciplinary steps have been followed.

Statement Concerning Equal Employment Opportunity (EEO)

The employer’s EEO policy should provide a clear statement of the employer’s intent to provide fair and equal treatment to all employees in all terms and conditions of employment, regardless of the employee’s race, color, sex, age, disability, religion, national origin, veteran status and/or any other status protected by applicable federal, state or local laws.  Like all policies, an EEO policy should be part of the training of all management personnel and should be periodically reviewed to insure that it is consistent with any changes that might occur in the law.

Statement Regarding At-Will Employment

An Employee Handbook should contain a statement making it clear that employment is at-will, meaning that the employment may be terminated by either the employer or employee at any time, without reason or notice.  This statement should also make it clear that the Employee Handbook does not create a contract for employment.  Additionally, the statement should inform employees that any policies set forth in the Employee Handbook can be modified at any time by the employer.

Statement Prohibiting Harassment and Discrimination

Related to the employer’s EEO policy or statement, this statement makes it clear to all employees that discrimination, harassment and retaliation in the employer’s workplace that is based on a person’s race, color, religion, national origin, sex, age, disability, veteran status or any other classification protected by federal, state or local law is prohibited and will not be tolerated.  In addition to the clearly articulated statement of the employer’s intent, this statement should include the various processes by which an employee may complain if the employee believes he or she has been the victim of harassment, discrimination or retaliation.

Statement Regarding Family and Medical Leave Act

Under federal law, where an employer employs fifty or more employees, the employer must comply with the Federal Family and Medical Leave Act.  The FMLA provides eligible employees 12 weeks of unpaid leave each leave year.  The FMLA requires that an employer’s Employee Handbook contain an FMLA policy statement.

Statement Regarding Confidentiality and Trade Secrets

A statement in the Employee Handbook regarding confidentiality and trade secrets should clearly state that, during the course of their employment, employees have or may have access to confidential and proprietary information and trade secrets that are the sole property of the employer.  The statement should inform employees that they are required to keep this information confidential both during the course of their employment and following the termination of their employment.  This statement should articulate policies and guidelines for how such information is to be managed and handled by the employees.

Statement Regarding Electronic Communications

Given that many employees make use of workplace computer systems and other company owned equipment in the context of their employment, Employee Handbooks should make it clear that the employer reserves the right to review and monitor all information that passes through their computer systems and equipment.  Employees should be informed that they should have no expectation of privacy related to any communication that takes place using employer owned computers or equipment, regardless of whether the communication is business related or personal.

Tags: Employee Handbooks, At-Will Employment, Discipline Policy, EEO, Equal Opportunity Employment, Discrimination, Family and Medical Leave Act, Trade Secrets, Electronic Communications, Harassment, FMLA

NLRB Offers Advice on Lawful 'At-Will' Employment Policies

Posted on Thu, Nov 29, 2012 @ 02:46 PM

by Jack B. HarrisonJack B. Harrison

On October 31, 2012, the National Labor Relations Board’s General Counsel’s Office Division of Advice issued two opinions (“Advice Opinions”) regarding “at-will” clauses in two employee handbooks.  In these opinions, the General Counsel’s Office concluded that the clauses at issue were lawful.

The two clauses at issue were as follows:

AT-WILL EMPLOYMENT: The relationship between you and the Company is referred to as “employment at will.”  This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company.  No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.  Nothing contained in this handbook creates an express or implied contract of employment.

Employment with the Company is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company.  Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will.  No manager, supervisor, or employee of the Company has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

As to the first clause, the opinion stated that this language was not unlawfully broad, in that the clause did not require employees to refrain from seeking to change their at-will status or to agree that the employment relationship cannot be changed in any way.  As to the second clause, the opinion concluded that the language was not unlawfully broad, in that the clause explicitly stated that the at-will relationship could be changed, allowing employees to reasonably assume that their rights under the National Labor Relations Act were not limited or prohibited in any fashion.

In the opinion, the General Counsel’s Office distinguished these clauses from a clause an Administrative Law Judge had previously held was unlawfully broad.  In the earlier ALJ decision, the clause at issue read, “I agree that the at-will employment relationship cannot be amended, modified, or altered in any way.”  In that case, the Board found this acknowledgment was “essentially a waiver in which an employee agrees that his/her at will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at will status.”  In contrast, the General Counsel’s opinion stated that the two clauses above were not unlawfully broad, in that the language in the clauses allowed for the possibility of a change in employees’ at-will status where agreements to that effect might be signed by a company representative, even if it be a highly placed one.  As a result, the opinion stated that employees’ efforts to unionize would not necessarily be limited or inhibited by the at-will language of the policies.

This opinion comes against the backdrop of the Board’s continuing efforts in recent years to focus its enforcement efforts on employer policies that, in the Board’s opinion, restrict employee rights unlawfully under the National Labor Relations Act.  In the course of these efforts, “at-will” employment statements, in particular, have drawn the Board’s attention.  In fact, the Board’s Acting General Counsel has, at times, suggested that even a conventional at-will statement might violate the NLRA.  With this opinion, the Board has, at least, offered some guidance as to the types of “at-will” statements and acknowledgements it might find lawful under the NLRA.

Prudent employers should exercise caution in the “at-will” statements and acknowledgements that they use, so as to avoid language that the Board has indicated it could find problematic.  Cors & Bassett attorneys are certainly available to assist employers in reviewing the various policies that might be contained within their Employee Handbook and in other documents.

Tags: At-Will Employment, NLRB, National Labor Relations Board