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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

"Supervisor" Re-Defined?

Posted on Mon, Dec 17, 2012 @ 08:36 AM

by Jack B. HarrisonJack B. Harrison

U.S. Supreme Court now has an opportunity to expand the definition of “supervisor” in a Title VII Hostile Work Environment Context


On November 26, 2012, the U.S. Supreme Court heard oral argument in Vance v. Ball State University, No. 11-556.  Vance presents the Court with the question of whether to adopt, for Title VII purposes, the broad, employee friendly definition of supervisor applied by the Second, Fourth, and Ninth Circuit Courts of Appeals or whether to adopt the more narrow, employer friendly definition that has been employed by the First, Seventh and Eighth Circuit Courts of Appeals.  The Second, Fourth, and Ninth Circuits have defined a “supervisor” as any employee who “directs and oversees” another employee’s daily work, while the First, Seventh, and Eighth Circuits have defined a “supervisor” as only those employees who have the power to “hire, fire, demote, promote, transfer, or discipline” another employee.

In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Court had previously held that employers are liable for a sex-based hostile work environment carried out by the victim’s supervisor.  Where the harasser is not a supervisor but only a co-worker, the employer is not liable unless it is found negligent in its handling of the victim’s complaint.   Thus, the question of who is defined as a supervisor has become critical in a Title VII hostile work environment context.

Facts of Vance

In Vance, Maetta Vance, a catering assistant, claimed that Saundra Davis, a catering specialist, had made her work environment stressful through physical acts and racial harassment.   According to Vance, the harassment included racial epithets, references to the Ku Klux Klan, and veiled threats of physical harm. Vance sued her employer, Ball State University, for workplace harassment by a supervisor. Vance asserted that Davis was a supervisor by virtue of the fact that she assigned a daily list of work-related tasks to Vance.  Ball State asserted that Davis was not Vance’s supervisor, because she did not have the power to “hire, fire, demote, promote, transfer, or discipline” Vance.  Vance urged the Court to adopt the standard set by the Circuits that define a supervisor broadly to include employees with authority to “direct and oversee” another employee’s daily work.

Procedural History

The District Court granted summary judgment in favor of Ball State.  The Court of Appeals for the Seventh Circuit affirmed, determining that Davis was not Vance’s supervisor because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance.  Additionally, both lower courts found Ball State had an adequate system in place for reporting and investigating claims of harassment under Title VII and, therefore, the University could not be found negligent.  Because of the conflict in the circuit courts described above, the Supreme Court granted review.

Potential Importance of Court’s Decision

If the Court adopts the broader standard of who is a “supervisor” for Title VII purposes and concludes that a “supervisor” is anyone with authority to “direct and oversee” an employee’s daily work, employers could see increased findings of liability for hostile work environment claims.  Additionally, if this were to be the Court’s ultimate determination, employers might want to rethink not only their training programs but also the job responsibilities of workers with quasi-leadership roles.

It is anticipated that Vance should be decided by June.  Once a decision is issued, we will provide an update on the Court’s ruling.  In the meantime, prudent employers should be cautious regarding how “supervisor” type duties are assigned within a workforce of employees who generally would be deemed non-supervisory.

Tags: Labor & Employment, Hostile Work Environment, Harassment