In the past few weeks, several of my clients have asked me to review their
handbooks to make sure they comply with current law.
In the case of Maryland employers, the
handbooks needed to be revised to add a
paragraph on Maryland’s new pregnancy
In other cases, normal handbook language
needed to be “toned down” to deal with NLRB
cases questioning the legality of handbook
language requiring employees to be
These handbook reviews made me think about the benefits of and problems with
handbooks I have encountered over the years. I thought employee handbooks might
good topic for National Clothesline.
Labor and employment lawyers generally agree that it is a good idea to have an
handbook. It serves several useful purposes.
First, it works as a great orientation tool, educating employees recently hired
company. It helps to know starting and quitting times, policies on lateness and
and other company rules and regulations.
Second, courts and government agencies expect there to be rules governing
while there is no legal requirement that rules be written, there is an
expectation that they will
be. Rules against violence should be broad, but rules involving things like
gambling, punching in
and out, calling in sick, and so forth should be more specific.
Third, handbooks establish holiday, vacation, sickness, and other policies so
those policies can be answered by employees and supervisors alike. It also
causes employers to
think about and create policies before they are asked by employees “what’s the policy on…?”
Fourth, employee handbooks — when updated — can be used to advise employees that any
exceptions to handbook policies made in the past are superseded by the new
handbook. As I
have explained in past columns, inconsistent enforcement of rules can give rise
to claims of
discrimination. Issuing a revised handbook can allow the employer to state that
inconsistencies no longer have any relevance.
Employee handbooks, however, carry baggage. They can be, and in most cases are,
enforceable employment contracts. Even with the best disclaimers, employee
establish policies that courts will generally find part of the compensation
employees are entitled
to receive. Poorly written handbooks can therefore create legal questions later,
which is never
really a good thing.
As I mentioned in the opening paragraph, the National Labor Relations Board has
considered handbook policies involving vague terms like “courtesy” and “loyalty” to be improper
restrictions on the right of employees to communicate about working conditions.
The NLRB is wrong, but until courts reverse these decisions, we are recommending
language be tempered.
Employee handbooks can be a liability if employees understand them better than
supervisors. I have seen employee handbooks that have been annotated by
every “interpretation” made by supervisors in the workplace.
Even well written handbooks can be a source of problems if there are exceptions
interpretations made that are memorialized by certain employees and unknown to
management. It’s a sad state of affairs if the employees know more about company policies
than supervisors and managers.
The most important thing to keep in mind is that employee handbooks should be
clear English (and possibly Spanish or another foreign language familiar to the
which means that they should not be written by lawyers. Each section of a
handbook should be
easily understood by a fifth grader, and it should not contain legal nonsense
words like “hereto,”
“wherein,” “herein-above,” and “notwithstanding the foregoing.” I once saw an employee
handbook written on a 3x5 card, and it was not bad. At the very least, it was
Whether you have a handbook or you are thinking about one, the process of
together should always include discussions among managers (and sometimes
what policies need to be in it.
Some handbooks have safety rules, others deal with topics of interest only to
and many have employment practices that are peculiar to the industry. Therefore,
taking an off-
the-shelf handbook may be a good place to start, but it’s more important to have a handbook
that takes into account the actual business and employment policies of your
Whether you use a 3x5 card or something longer, an employee handbook is a good
At the very least, it makes you think about your business and your employees,
which is never
a bad thing. In any event, have it reviewed by a competent employment lawyer
periodically. A bad employee handbook is worse than no handbook at all.
Update: In past columns, I mentioned a new rule that the National Labor
Relations Board had
adopted requiring all employers to post notices concerning employee rights under
Labor Relations Act, including the right to unionize.
Every reviewing court has struck down the rule. It was reported today that the
NLRB will not
appeal those rulings. Therefore, there will be no need to add an NLRB government
poster to the
many posters you are already required to have, such as wage and hour, workers’ compensation,
anti-discrimination, wage and hour, etc.