Part 2: What Policies Should Be Part of a Standard Employee Handbook?

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This series addresses employee handbooks. In Part One of this series, we discussed why written employment policies are important. This Part Two is about having written policies that everyone in the organization understands. In this post, we’ll discuss some of the important policies—and why you need them.

What Employee Handbook Policies Are Legally Required?

Some laws require the employer to have a policy addressing them in an employee handbook. For example, if the Family and Medical Leave Act (FMLA) applies to your business, part of your compliance with that law is providing employees with information regarding their rights and obligations. If you have a handbook, that information needs to be in the handbook. But simply including the minimum requirements and moving on is a missed opportunity. An employee handbook is a perfect vehicle to make assumptions and unwritten expectations clear to employees.

What Employee Handbook Policies Are Recommended?

But required policies are the exception. For most situations, it is simply good practice to address certain areas of the law, both to provide clarity to employees and protect the employer. An employee handbook is partly about clarity. Here are a few areas that most employers should address directly.

At-Will Employment

One useful policy addresses whether employees are at-will and how that relationship can be changed. In most states, at-will employment is the default, which means that the employer can terminate an employee for any reason (or no reason at all). But when an employment relationship sours, having a clear statement on at-will employment and how that relationship can be modified may prevent a breach of contract or wrongful termination claim. These policies need to be carefully drafted, however, to avoid running afoul of the National Labor Relations Act (NLRA).

Anti-Discrimination, Harassment, and Retaliation

Because the at-will doctrine lets employees be fired, anti-discrimination laws often take center stage when there is a dispute over whether a termination was lawful. Many federal, state, and local laws protect against discrimination in hiring and firing; against hostile work environments and harassment; and against retaliation for asserting rights under these laws. For some laws, you are required as an employer to display a poster informing employees of their rights. But meeting this minimum obligation is only the first step. Having and following clear policies can prevent employment discrimination in the first instance. In certain cases, having policies addressing anti-discrimination in employment may actually provide a defense to liability.

Work Expectations

In general, it may be a good idea to put down in writing what is expected of employees, particularly if that expectation is very important to the employer. Depending on what matters most to your business, this policy will look different for different organizations. It might include items such as how quickly employees are expected to respond to emails or phone calls, or guidance on working overtime.

Acknowledgment of Policies

No matter which policies the organization decides it needs, each employee should sign a notice of receipt and agreement to abide by the policies. Such an acknowledgement can do a few things. First, it can ensure that the employee is on notice of the policies. Second, it can be used defensively if an employee attempts to argue that she never knew of a certain policy, or that the employer did not have one. These acknowledgements, like all the policies and documents you have an employee sign, must be carefully drafted to avoid legal pitfalls.

What Should NOT Be in the Employee Handbook?

Just as important as what is in an employee handbook are the things that should NOT be included. Generally, the following items are better left out (or for some, at least drafted with the advice of counsel):

• A policy that violates an employee’s rights or the law. This is an obvious one, but crafting a legally compliant policy that doesn’t run afoul of an employee’s rights or the applicable law may be difficult. The National Labor Relations Board (NLRB) is constantly striking down employment policies as violating employees’ rights under the NLRA.

• Confusion about the employee’s status. An employee handbook should also not include policies that create confusion about an employee’s work status. For example, employee handbooks should generally not contain policies that appear to promise employment for any set length of time. If some employees have contracts, but others are simply at-will, that issue is better dealt with on an individual basis with the individual employee, so as to not create confusion for other employees.

• Policies that don’t give an employer appropriate discretion and flexibility. In some cases, having a rigid policy can be a good thing (such as a no-harassment policy). But in other cases, saying that the employer shall take a certain action may be setting up the employer for failure. Take progressive discipline, for example. Drafted the wrong way, a progressive discipline policy can wind up tying the hands of management so a problem employee cannot be timely fired. Be careful to analyze policies for workability.