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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

Workplace Concealed Carry Laws: "Can I Come to Work Armed?"

Posted on Wed, Apr 17, 2013 @ 10:45 AM

Concealed Carryby Jack B. Harrison

Approximately forty states, including Ohio and Kentucky, have laws that allow individuals to obtain a permit to carry a concealed weapon.  Typically, these laws place some restrictions on where concealed weapons can be carried.  For example, in Ohio, concealed weapons are banned by statute from government buildings, schools, universities, day care centers and bars/restaurants with liquor licenses.

What is not always clear with concealed carry laws is the extent to which they place limits on individuals to carry concealed weapons in the workplace.  In many cases, concealed carry laws do not explicitly ban concealed weapons from a workplace, but do allow employers to ban concealed weapons from their property or premises.  However, some states limit an employer’s right to restrict employees from storing concealed weapons in vehicles that are parked on the employer’s property.  In almost all instances, if an employer wishes to prohibit employees from bringing concealed weapons into the workplace, the employer must place appropriate notices throughout the workplace and, in some states, those notices must contain specific language defined by statute.  (This (above left) is an example of a notice that the Ohio Attorney General recommends.)

Where a business is open to the general public and the business wishes to prohibit both employees and patrons from bringing concealed weapons onto the premises, the business must post a sign in a conspicuous location indicating that such weapons are prohibited.  Where a business posts such a prohibition, in some states, a person who then knowingly brings a concealed weapon onto the business property in violation of a posted notice may be criminally prosecuted for carrying a concealed weapon.

Whether or not employers post notices prohibiting concealed weapons from the business or the workplace, employers should consider including a written policy within their employee handbook or within their general employment policies that makes it clear that employees are prohibited from carrying concealed weapons onto the employer’s property and into the workplace.  This policy should be clearly conveyed to employees in orientation and subsequent training.  The policy should specifically identify those areas of the workplace in which an employee is prohibited from carrying a concealed weapon, keeping in mind that some state’s limit an employer’s ability to restrict an employee’s right to keep a weapon stored in their personal vehicle while on the employer’s property.

Given that the law in this area is constantly evolving, prudent employers should periodically review their policies and practices related to concealed weapons with their counsel, revising such policies where appropriate.

Tags: Employee Handbooks, Concealed Carry in the Workplace

More From the NLRB on Employee Handbooks & Personnel Policies

Posted on Mon, Oct 01, 2012 @ 03:37 PM

by Jack Harrison Jack B. Harrison

For some time now, the National Labor Relations Board has been paying a great deal of attention to issues related to personnel policies.  In several recent decisions, the Board dealt with the issue of whether and when employees could “reasonably conclude” that certain facially neutral employee policies required them to refrain from engaging in protected concerted activities.

In Costco Wholesale, Inc., 358 NLRB No. 106 (Sept. 7, 2012), the Board concluded that Costco’s rule related to electronic posting that prohibited statements that “damage the Company . . . or damage any person’s reputation” was overly broad because it arguably also included complaints by employees regarding the company’s treatment of employees.  The Board indicated that where a social media policy is narrowly targeted toward preventing egregious employee misconduct, such as “sabotage and sexual or racial harassment,” it would likely withstand scrutiny by the Board. Therefore, employers should pay particular attention to their social media policies to insure that they fall on the right side of the line between impermissible social media policies that improperly restrain employees’ protected conduct and permissible social media policies that focus on workplace decorum.

Additionally, the Board in Costco concluded that handbook provisions aimed at restricting employees from sharing private or otherwise sensitive information about sick days, leaves of absence, FMLA leave, ADA issues, workers’ compensation injuries, personal health information, payroll, Social Security numbers, employee names, addresses, telephone numbers and email addresses, were unlawfully restrictions on the rights of employees to discuss terms and conditions of employment and, thus, violated the Act.

In Flex Frac Logistics, LLC, 358 NLRB No. 127 (Sept. 11, 2012), the Board was faced with a provision in an at-will employment agreement that prohibited employees from disclosing “confidential information,” including “personnel information,” to individuals “outside the organization.” In reviewing this provision, the Board concluded that the provision, by its language, prohibited employees from discussing the terms and conditions of their employment with union representatives.  The Board determined that, to the extent the provision was ambiguous, it was to be construed against the employer, in that the provision could be read to have coercive meaning in violation of the Act.

In TT&W Farm Products, Inc., 358 NLRB No. 125 (Sept. 11, 2012), the Board reviewed five rules contained in an employee handbook that were related to employees leaving their workstations during their assigned work times. The Board concluded that where the rules were reasonably read to prohibit unauthorized leaves or breaks, they were permissible.  However, the Board also determined that rules that prohibited employees from “walking off the job” or from “willfully restricting production” were unlawful because they prohibited participating in a protected strike.

These decisions make it clear that the Board continues to be focused on provisions contained in employee handbooks and personnel policies, reviewing workplace rules and policies in both non-union and union workplaces to determine if they reasonably tend to interfere with employees’ rights under the Act.  In light of the Board’s continued interest, prudent employers should continue to review their rules and policies to insure that they are consistent with the guidance given by the Board through its decisions.

Tags: Employee Handbooks, Protected Concerted Activity, NLRB, National Labor Relations Board

Do I Really Need An Employee Handbook?

Posted on Thu, Jun 14, 2012 @ 09:41 AM

Susan R. Bellby Susan R. Bell

I frequently hear reasons why employers avoid handbooks, such as:

  • “Our company is too small, we don’t need a handbook.”
  • “My employees won’t read it anyway, so why bother.”
  • “A handbook will simply give my employees ideas about ways they can sue me.”
  • “I need to be flexible when managing my employees.”
  • “Handbooks are too expensive.”
  • “Why do I need a handbook, I’m an at-will employer?”

In fact, there are many advantages to having an employee handbook.  A well-written and up-to-date handbook allows an employer to confirm the at-will relationship with its employees.  A handbook sets the stage for consistent and uniform management practices, and advises all employees of the company’s policies and rules – without written policies, past practice becomes policy. A handbook saves employers from having to answer the same employee questions over and over, and helps to ensure a uniform response.  A handbook is a convenient way to provide your employees with information that you are obligated to provide by law. And an employee handbook is a convenient place to include one absolutely indispensible employer policy – an EEO and sexual harassment policy with a complaint procedure. Such a policy may be the employer’s only defense to a hostile environment claim.

But having a handbook is not without some risk.  For example, a poorly drafted handbook can be worse than no handbook at all.  Similarly problematic is a well-drafted but rarely or inconsistently enforced handbook. Moreover, using an inexpensive, canned handbook that has not been tailored to the needs of your company may cause you more trouble than it’s worth.

The key is obtaining a well-drafted handbook that is tailored to the specific needs of your company, training your management staff and supervisors prior to the introduction of your handbook to your entire workforce, and ensuring consistent enforcement of the policies contained therein.  You can avoid the most common mistakes by following these rules:

  1. Do not use a canned handbook or a handbook used by another company without consulting counsel.
  2. Do not include a non-competition policy or an arbitration policy (these need to be in separate, written agreements).
  3. Review other documents to avoid inconsistencies.
  4. Train your supervisors before rolling out your handbook.
  5. Ensure that you obtain a signed acknowledgment of receipt and understanding from each employee.
  6. Ensure that each new hire is provided with the most recent version of the handbook.   
  7. Periodically review your handbook to ensure compliance with current laws.
  8. Train your employees.
  9. Follow your own policies.
  10. Carefully document a legitimate business reason if you must stray from policy for any reason.

Some specific policies you may want to consider for inclusion in your handbook include:

  • A description of the employer-employee relationship (i.e., at-will employment)
  • The company’s policies, rules, and regulations
  • Employment classifications; equal employment opportunity policy
  • No harassment, discrimination or retaliation policy
  • Guidelines for prevention of and handling complaints of harassment, discrimination, and retaliation
  • Health and safety
  • Benefits (insurance, vacation, holidays)
  • Leave policies, including, Family and Medical Leave (for employers with 50 or more employees), military leave, extended leave, bereavement leave, jury duty leave, and administrative leave
  • Attendance
  • Rules of conduct
  • Customer and employee information privacy
  • Internet, e-mail, voicemail, instant messaging, and blogging policy
  • Cell phone usage
  • Violence in the workplace
  • Weapons policy
  • Confidential information and files
  • Drugs and alcohol in the workplace
  • Inspection of property
  • Bulletin boards
  • No distribution/no solicitation policy
  • Hazard communication policy and procedure
  • Working together union free
  • Complaint procedures

Tags: Employee Handbooks, Leave Policies, Rules of Conduct, Weapons Policy, Complaint Procedures