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National Clothesline
National Clothesline
What’s in your employee handbook?
In the past few weeks, several of my clients have asked me to review their employee
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
accommodation law.
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
respectful.
These handbook reviews made me think about the benefits of and problems with employee
handbooks I have encountered over the years. I thought employee handbooks might make a
good topic for National Clothesline.
Labor and employment lawyers generally agree that it is a good idea to have an employee
handbook. It serves several useful purposes.
First, it works as a great orientation tool, educating employees recently hired about the
company. It helps to know starting and quitting times, policies on lateness and absenteeism,
and other company rules and regulations.
Second, courts and government agencies expect there to be rules governing discipline, and
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 questions about
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exceptions to handbook policies made in the past are superseded by the new handbook.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 prior
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 handbooks
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 recently
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 that such
language be tempered.
Employee handbooks can be a liability if employees understand them better than their
supervisors. I have seen employee handbooks that have been annotated by employees with
every “interpretation” made by supervisors in the workplace.
Even well written handbooks can be a source of problems if there are exceptions and
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 written in
clear English (and possibly Spanish or another foreign language familiar to the workforce),
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 not verbose.
Whether you have a handbook or you are thinking about one, the process of putting one
together should always include discussions among managers (and sometimes employees) about
what policies need to be in it.
Some handbooks have safety rules, others deal with topics of interest only to your business,
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 workplace.
Whether you use a 3x5 card or something longer, an employee handbook is a good idea.
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 initially and
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 the National
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.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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