A recent survey by the Department of Insurance suggests 23% of employers don’t have an employee handbook on file. There are also many employers with non-compliant or incomplete employee handbooks. That presents many potential pitfalls that could leave an employer exposed in critical areas of compliance.
Audit cases teach many lessons that should influence the drafting, reviewing, or revising of a handbook. Below are a few best practices:
- Regularly review and update employee handbooks.
- When drafting handbooks, make sure disclaimers are conspicuous and adequate.
- To ensure an at-will disclaimer is conspicuous, place it in its own paragraph on the first page of the handbook. Even better, also include it with termination/discipline policies and on the employee acknowledgement/signature page.
- Make sure you not only reserve the right to change policies, but also the right to follow – or not follow – the policies at the company’s discretion.
- When drafting handbooks, use discretionary language such as “should” and “may,” rather than not mandatory language such as “will” and “must.”
- When creating lists of disciplinary or terminable offenses, make sure to end with discretionary language such as, “or any other offense the company deems appropriate.”
- If the company has separate operations manuals or supervisory handbooks, include a disclaimer, even if the manuals are not generally disseminated to employees.
- When drafting an electronic communications policy, which will cover company phones, pagers, tablets, and laptops, include a statement that there should be no expectation of privacy for the use of those devices, including any emails and text messages sent or received using the devices.
- Consider revising any electronic communications policy to include a statement that there should be no expectation of privacy in any data created, viewed, or accessed on the company’s system, including, but not limited to, personal email accounts and websites, regardless of whether such accounts/sites are password protected.
- Have employees sign handbook acknowledgements.
- Make sure handbook revisions are disseminated and that employees sign new handbook acknowledgements for each revision.
- Do not forget disclaimers. Including at-will disclaimers in offer letters and applications is a good practice that can help refute an argument that the employee could not have justifiably relied on employment policies.
- Be consistent. Inconsistent written or oral representations that contradict or conflict with the disclaimers may result in creating issues of fact.
