A company without an employee handbook is like a sandwich without bread to hold it together. A strong employee handbook can preempt or diminish litigation by fostering an orderly and tolerant company culture. When you begin drafting your employee handbook, keep the text simple and eliminate legalese. Also, avoid words like "will," "shall," "only," and "always." When getting into the substance, consider these essential provisions:
- Personal Statement
Any marketing guru will tell you: People Talk! Detailing your company's history and purpose can personalize the "machine." Include information about the people who formed or invested in the company along with the products or services you offer.
- At-Will Employment Provision
An employee handbook should state clearly and unequivocally that it is as a source of information and guidance for employees, not an employment contract. You can even go further by saying that any contract for employment must be in writing and signed by a particular executive to be effective. Such a statement allows you to later point out that it was unreasonable for a former employee to rely on a conversation with a manager about how long a position might last.
- Equal Employment Opportunity Policies
In this day and age it is unquestionable that you should include anti-harassment and anti-discrimination policies. When setting out the requirements you want your employees to adhere to, look to federal and state laws for appropriate language.
- Other Policies and Procedures
Every employee handbook should also include a leave policy addressing things like accrual of sick time or qualifications for leaves of absence. Also include policies related to attendance and vacation, when an employee is considered on and off duty, compensation, benefits, safety, drug testing, and evaluations. Then consider including policies particular to your business. For example, healthcare providers should address HIPAA, a company with traveling salespeople should have an expense policy, and a union employer should make clear the extent to which the handbook is even applicable. Think about what makes your workforce unique and where general rules may not suffice.
- Complaint Reporting Procedure
How you decide to outline a complaint reporting procedure, particularly one that deals with sexual or other legally prohibited harassment, will ultimately depend on the size of your company. You may decide to designate a particular person to whom all reports should be made—such as "your direct supervisor," lay out a chain of command, or utilize a hotline. Just remember, you must provide alternatives to avoid a situation where the person you have designated turns out to be the harasser or the hotline has a leak that becomes common knowledge among your employees unbeknownst to your managers.
- Social Media
Social media is a hot-button issue. The National Labor Relations Board has recently been active in applying Section 7 of the National Labor Relations Act to social media policies. That section applies to most union and non-union private sector employers, giving employees the right to, among other things, organize and engage in "concerted activity" for "mutual aid or protection." It is used to defend employees' rights to speak on wages, hours, and working conditions. Include guidelines that do not infringe on these rights by providing specific examples on what is permissible and impermissible in social media. Because this area of the law is rapidly changing, though, you would be wise to seek the advice of counsel.
- Code of Conduct
Your code of conduct should address broad issues like appropriate behavior while at work, workplace violence, dress code, and solicitation. Further, employees should understand that using business equipment precludes any claim of privacy. Reserve the right to review any e-mail, voicemail, computer use, or internet use by an employee who uses your equipment and make it clear that certain activities, such as visiting pornographic websites, are prohibited when using your equipment.
Explain how violations may result in discipline and describe "discipline." Perhaps provide a list detailing all possible disciplinary actions or provide specific progressive disciplinary structure. Then, list offences which "may" result in termination without prior discipline. Avoid stating that a broad listing of indiscretions "will" result in termination because you might find yourself eating those words. While it is the best practice to apply all policies consistently, no one has seen it all. Do not be lulled into believing you can anticipate every situation. You cannot! In that same vein, once you have listed the offenses that "may" result in termination, include a catch-all provision stating that the list is not intended to be exhaustive.
- Confidentiality
All employees must understand what information is considered confidential and the ramifications of disclosing confidential information. A good description of what information the employer considers sensitive—such as products, processes, marketing data, recipes, pricing information, business plans, customer information, inventions and discoveries—is imperative.
- Statement Regarding Effect
An employee handbook must also make it clear to employees that is supersedes all prior written or oral guidance and is subject to change without notice.
Now that your sandwich is fully breaded, meaning you have a comprehensive employee handbook designed to deter litigation—use it properly! Writing policies is not enough. Failure to adhere to the policies in your own employee handbook has often been used as evidence against an employer. An employee handbook can hurt you as much as it was intended to help you if you fail to implement it and follow it effectively. Require both current employees and new hires to sign a document for their personnel file stating that they received and reviewed your handbook, then train human resources professionals and managers on the policies. Finally, ensure that your leadership applies each policy consistently.
* Sheena R. Hamilton and Robert A. Kaiser are attorneys in the employment and labor practice group at Armstrong Teasdale, LLP in St. Louis Missouri.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
