Employee handbooks serve to communicate personnel policies, workplace rules, benefits, and work standards in an integrated manner. Handbooks provide supervisors and HR personnel with a reference guide for implementing and enforcing company policies and rules. The proper use of handbooks contributes to uniform, consistent, fair treatment of employees.
Considering the importance of these lofty purposes of handbooks, it is imperative that employee handbooks:
- are regularly reviewed and updated, at least every two to three years;
- do not create the misimpression that every rule is in the handbook, implying that policies or practices not contained in the handbook are non-existent or invalid, (i.e. an all-encompassing impression);
- do not foster an impression to workers that the policies and procedures in the handbook create a "contract" which requires proof of "just cause" for termination or discipline, (i.e. negating "at-will" employment);
- receive careful drafting and implementation to avoid situations where the employer might become bound by unintended terms or conditions.
In our Washington State Court of Appeals, the Court ruled that it is a jury question of fact as to whether an employee reasonably relied upon a progression discipline policy (to the extent of negating the employee handbook's broad "terminable-at-will" policy and handbook disclaimer). In the case of Kuest v. Regent Assisted Living, Inc., there was a strong up-front handbook disclaimer, and the worker clearly had notice of that disclaimer before starting work. Yet, the Court of Appeals Court observed that because the worker had been told repeatedly to use the progressive discipline policy and because other former workers had been fired according to that step discipline policy, there remained a dispute of fact on the issue of whether the company negated the effect of its handbook disclaimer through its later inconsistent conduct of how employees were actually terminated.
Then there is the whole gray-area set of issues with absenteeism rules which are the subject of numerous terminated employee claims. Big problems with absenteeism rules can occur through:
- Lack of management enforcement;
- Inconsistent enforcement;
- Vague, general-worded policies inviting favoritism and discriminatory application;
- The use of a points system alone may not be comprehensive enough to pick up excessive excused (doctor's notes) absences; and
- Documentation errors in recording or omitting absences data recordkeeping.
Other recent court decisions dealing with employment retaliation claims, call for new anti-retaliation clauses to be inserted into anti-discrimination policies and implemented as well. Then there are various federal and state statutes affecting employee handbooks, which should be considered during the periodic handbook updating function.
New employee conduct and new technology rules can call for update consideration. A partial list of current topics includes:
EMPLOYEE CONDUCT AND DISCIPLINE POLICIES
YOU SHOULD HAVE
- Equal Employment
- Harassment and/or Discrimination
- No Retaliation
- Drug-Free Workplace and Substance Abuse
- Tobacco Use
- Violence in the Workplace
- Locker and Tool Box and Locks/Searches Consent
- Confidential and Proprietary Information
- Ethics and Conflicts Of Interest
- Use of Telephones and Cellular Phones
- Use of E-Mail and Voice Mail
- Use of the Internet
- No Bypassing or Removal of Safety Equipment
- Progressive Discipline
Our review of a number of employer handbooks recently shows a real need for updating. Why not have your labor counsel conduct a review of your employee handbook as 2005 is welcomed? For PMA members, we will review your employee handbook under the three free hours Hotline benefit and, if additional hours are needed, we will quote you a fixed amount.