A Word on Employee Handbooks
Beware Some of the Many Costly Mistakes Employers Make
By Kathryn S. Crouss, Esq.
Kathryn S. Crouss, Esq.
Having formal, written procedures in place will reduce the possibility of confusion regarding company policy, thereby enabling employers to spend less time, energy, and money explaining rules and regulations.
Handbooks also serve as good references regarding applicable federal, state, and local law, which lessens employers’ exposure to litigation. As such, it is good practice to be cognizant of the current laws in force, make note of any changes or new developments, and adjust policies accordingly. The best advice regarding employee handbooks is to develop a good organizational style, so that the handbook is user-friendly, and avoid using overly broad or narrow language.
Some suggested topics to focus on include:
Sexual Harassment Policy
Employers can be held liable for sexual harassment on the part of their employees in certain circumstances. If an employer is found to have been aware of sexually harassing conduct from one co-worker to another, and did not act reasonably to prevent it, the employer can be held liable for the behavior. For this reason, employers are well advised to adopt a policy against sexual harassment.
The policy should include a description and examples of sexual harassment, provide a description of the process for filing a complaint, and state that it is unlawful to retaliate against someone for filing a complaint. Employees should be required to sign an acknowledgment of their understanding of the policy, which employers should keep in each employee’s personnel file.
E-mail and Internet Use Policy
A good employee handbook should include a comprehensive e-mail and Internet use policy. Recent case law suggests that employers may be liable for the conduct of their employees when they use the company’s e-mail and Internet connections. However, courts also recognize that employees have a reasonable expectation of privacy in the workplace.
A good e-mail and Internet policy will clearly outline the employer’s expectations regarding Internet and e-mail usage in the workplace, to avoid conflict between the two competing interests. Such a policy should:
• Inform employees whether personal use of the Internet or e-mail is permitted. It is advisable to prohibit all personal use of Internet and electronic mail on company time and equipment.
• Advise employees that their Internet and e-mail activity is monitored.
• Inform employees what uses of e-mail and Internet are prohibited.
• Develop an easy process for employees to report mistakes or violations.
• Provide employees with information regarding the consequences of violating the e-mail and Internet use policy.
As with an employer’s sexual harassment policy in a handbook, employers are advised to require employees to sign a statement acknowledging receipt of the policy.
Other Topics to Include
The handbook should explain that eEmployee health benefits may be continued at the employee’s expense for up to 18 months after a voluntary or involuntary termination (for employers with 20 or more employees) through the Consolidated Omnibus Budget Reconciliation Act (COBRA). At the state level (often referred to as mini-COBRA), Massachusetts continued coverage is available for the same amount of time for employers with two to 19 employees.
A good handbook will also address workers’ compensation, at-will employment, anti-discrimination policies, sick and personal days, vacation time (Massachusetts employers are not required to pay terminated employees for unused sick or personal days, but unused vacation time is considered wages and must be paid upon termination), the Family Medical Leave Act, access to personnel files (in Massachusetts, employees have the right to access their records within five days of submitting a written request), and jury-duty leave (in Massachusetts, if an employee is scheduled to work for three months prior to the jury duty, he or she is entitled to regular wages for the first three days of jury-duty leave).
Avoiding the Contract Trap
Employers should include a clause in the handbook stating that nothing in the handbook constitutes an employment contract. Courts now find that an employee handbook can be construed as an employment contract, binding the employer to certain obligations. For example, an employer’s failure to adhere to a handbook policy regarding progressive discipline may be used as evidence of an improper termination.
Therefore, it is critical that employers be familiar with their own employee handbook and ensure that its practices conform to the stated policies. It is also important that the language in a handbook is flexible enough to allow employers to alter and adjust such policies as needed. Consequently, employers are urged to invest some effort and carefully draft their employee handbooks to reflect their business needs.
To prevent an employee handbook from being considered a contract:
• Retaining the right to unilaterally modify the contact;
• Do not negotiate any terms of the handbook with the employee;
• Make sure the handbook provides only guidance to employees regarding the company’s policies;
• Make sure the handbook never states a term or length of employment;
• Call special attention to the handbook during the hiring process; and
• Do not require that the employee sign the handbook.
If you need assistance with drafting or reviewing your employee handbook, you are urged to contact an attorney or an employment specialist.
Kathryn S. Crouss, Esq. is a member of Bacon Wilson’s litigation department and handles all aspects of civil litigation, including employee- and management-side employment-law litigation, personal injury, and domestic-relations litigation; (413) 781-0560; baconwilson.com/attorneys/crouss
