A properly designed and distributed employee handbook with an acknowledgement of receipt is primarily a business tool that will reduce the risk of liability for the company. A properly drafted and distributed employee handbook, with a clearly defined complaint procedure, will also minimize exposure to harassment and discrimination claims.
Employee handbooks should contain language that preserves at-will employment and clearly detail all workplace based employee rules. The at-will employment language should maintain the ability of the employer to fire at will. The language of an employee handbook should be fashioned so that it will not be interpreted as an employment contract. All at-will employment disclaimers and any language regarding probationary employee status should be prominently identified.
With reference to the Equal Employment Opportunity (EEO) and anti-discrimination policies, employers should include each protected category. The complaint procedure should state that complaints of discrimination and harassment will be investigated. Key language should be included to prohibit discrimination and harassment based on race, gender, color, religion, national origin, disability and age. State or local law may require additional categories. Employers should also add language prohibiting discrimination based on genetic and carrier status to this list.
Your handbook should have a carved out section covering your Americans with Disabilities Act (ADA) policy. Courts and the Equal Employment Opportunity Commission (EEOC) have taken varying views on when an individual is qualified for a job. Likewise, both are taking a critical look at whether existing qualification standards, like the requirement of a special license, is truly an essential function of the job.
Wage and hour issues should take center stage. A review of the employee handbook for wage and hour purposes should include a Fair Labor Standards Act (FLSA) Safe Harbor provision that preserves an employee’s exempt status in the event that any improper pay deductions are made. Overtime authorization requirements and specific requirements for meal breaks, donning and doffing and travel time are essential sections. Also reference your rules regarding the calculation of time and the method to accurately record time.
The employee handbook may also address retaliation against whistleblowers. Whistleblower claims have been on the rise, and both the Sarbanes-Oxley and Dodd-Frank Acts expand the rights of whistleblowers.
Finally, technological advances of the Internet age introduce a myriad of legal issues. Your company may decide to adopt a social media policy. The policy should be comprehensive and clearly communicate the company’s expectations regarding the use of social media in the workplace.
Issues involving the use of the company’s name and likeness should be covered and should be restricted without advance approval.
New employment legislation is unlikely in an election year. Still, now would be an excellent time to review and update your company’s employee handbook or to establish one.
Thomas A. Cox Jr. is a litigator specializing in labor and employment law at Epstein Becker Green’s Washington and Atlanta offices.