United States: Mandatory Employee Handbook Policies – Part I

Last Updated: August 30 2017
Article by E. Jason Tremblay

EMPLOYMENT LAW ESSENTIALS



Following up on my last article regarding whether a company should maintain an employee handbook, the next important question to answer is what provisions are essential to maintain in a handbook. There are literally hundreds of policies that an employer can insert into a handbook, but this article (as well as the next few) is dedicated to highlighting the most important policies to maintain in a handbook. The policies referenced in this article are generally introductory handbook policies. Keep in mind that employee handbooks should be written in "plain English" that are easy to understand and follow by both management and employees.

"At-Will" Employment Statement

To alleviate the problem of converting an employee handbook into a binding employment contract between a company and its employees, a carefully drafted "at-will" statement must be contained in the handbook. An "at-will" statement specifically provides that the handbook is not a contract of employment, is not intended to create any binding contractual commitments between the employer or any of its employees, and that the employment relationship is "at-will" (i.e., the employer and its employees retain the mutual right to terminate the employment relationship with or without notice, cause or reason). An "at-will" employment policy should be one of the first policies contained in a handbook.

Equal Employment Opportunity Policy

An employer must ensure that it has an Equal Employment Opportunity (EEO) statement that provides that it has a policy of providing equal employment opportunities to all individuals regardless of their protected classification (e.g., sex, age, religion, disability, genetic predisposition, sexual orientation and other characteristics protected by the law). The EEO policy should cover all protected classifications of employees, including additional classes that may be protected by state law or local ordinances. This policy should also be inserted into the earlier section of any employee handbook.

Harassment and Retaliation Policy

A prudent employer must also adopt an anti-harassment policy that prohibits sexual and all other unlawful types of harassment and discrimination (such as racial, national origin, pregnancy, etc.). The anti-harassment policy should set forth:

  1. definitions of sexual harassment and other types of unlawful harassment, using examples;
  2. the illegality of any harassment;
  3. the internal complaint procedures available to employees to complain of the harassment, keeping in mind that there should be alternative avenues (or bypass procedures) through which an employee can complain in case, for example, the alleged harasser is the individual to whom the employee is supposed to complain;
  4. a statement explaining that a prompt investigation of the complaint will take place and that the appropriate remedial action will be taken to stop the unlawful harassment; and
  5. assurances that employees who report harassment will not be retaliated against for making a complaint or reporting the harassment.

Reasonable Accommodation Policy

Employers of all sizes must accommodate known or perceived disabilities (as the term is defined broadly under federal, state and/or local law). An employer must therefore maintain a "reasonable accommodation" policy complying with the Americans with Disabilities Act and other federal, state or local laws dealing with disabled employees and applicants. The policy should also include the employer's commitment to reasonably accommodate religious beliefs of its employees. In Illinois, this policy should also reflect the employer's commitment to reasonably accommodating pregnancy-related conditions. In most circumstances, providing an employee with a reasonable accommodation will be a minimal cost to the employer and will avoid a costly and protracted legal battle if the employee sues for the requested accommodation. This policy should set forth:

  1. the concept of a reasonable accommodation;
  2. the procedures to be followed when an employee needs an accommodation; and
  3. a commitment to provide reasonable accommodations that do not cause undue hardship to the employer.

Immigration Policy

The Immigration Reform and Control Act of 1986 (IRCA) prohibits employment discrimination on the basis of national origin or citizenship, or requiring more or different identification documents for particular individuals. The IRCA also provides for the imposition of civil monetary fines and criminal penalties on employers who violate the IRCA's provisions regarding the restriction on employing aliens who are not legally authorized to work in the United States. Because the IRCA's employer sanction provisions have potentially severe consequences for employers who violate them, it is essential that all companies that hire employees be aware of the IRCA's provisions and that they follow the IRCA regulations. As such, a "must have" policy is an immigration policy highlighting the employer's commitment to comply with the IRCA and prohibiting discrimination based on an employee's national origin or citizenship.

Tune into my next Employment Law Essential article detailing the necessary wage and hour related policies to maintain in an employee handbook.

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.

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