by Jamie Hasty, SESCO Management Consultants
Employee handbooks are an important way for employers to communicate rules, expectations, and benefits to employees. They also can serve as a way for the company to establish its brand and convey its history and corporate culture. If the company’s employee handbook is out of date, however, it can become a liability, rather than an asset. With ever-evolving laws and regulations, it is important to ensure that your company’s handbook is compliant with federal, state, and local law.
An employee handbook should include statements addressing at-will employment; equal employment opportunity and harassment; work hours; leave under the Family and Medical Leave Act; accommodations under the Americans with Disabilities Act; workplace violence; trade secrets and confidentiality of company information; work rules and the consequences for violating them; and other important issues. But often handbooks include confusing or complicated policies. As you consider simplifying and keeping your handbook up-to-date, consider the following.
Your handbook is an important communication tool. Apart from spelling out the “dos and don’ts,” the handbook can introduce employees to the mission, culture, tone, and management style of the organization. It can be a dry list of rules, or it can personalize a company. It can be a quagmire of information or a big time-saver for HR to help employees answer basic questions.
How you communicate the information is just as important as what you communicate. Make the tone of your handbook your own and ensure that it covers what is most important to your culture.
Employers should continually assess that the handbook makes sense for their workplace. A handbook that is long, poorly organized and full of “legalese” is daunting for HR to update, and unlikely to be helpful to employees. But some legalese is important, such as a prominent disclaimer that the handbook is not a contract, does not guarantee a job for any particular time, does not change the at-will nature of employment, and is subject to change at the company’s discretion.
A handbook cannot cover every possible scenario. Include policies that are legally required or encouraged and key company-specific practices. But review periodically to see if a policy can be shorter, clearer, or eliminated. If someone outside of HR reads it, do they agree that each section is necessary, clear, accurate, and relevant?
An out-of-date handbook has limited use and can be a legal liability. It is important to capture legal changes affecting your workplace.
LGBT Protections. Laws continue to expand protections afforded to lesbian, gay, bisexual and transgender employees. Courts have held that LGBT individuals are protected by Title VII’s protection against discrimination “because of sex.” Many states and municipalities also have enacted laws and regulations expanding employment protections to include LGBT individuals. Given this trend, employers should ensure that their equal employment opportunity policies provide equal protection to employees without regard to sex, sexual orientation, gender identity/expression, or marital status.
Moreover, in light of the U.S. Supreme Court’s decision recognizing same-sex marriages, companies are required to provide same-sex married couples with the same benefits as heterosexual couples. Employers should revise their policies on employee benefits and leaves of absence to ensure that same-sex couples receive equal treatment.
Pregnant Employees. The Pregnancy Discrimination Act prohibits discrimination based on pregnancy in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, and benefits. The Act also requires employers to treat pregnancy disability the same as other disabilities for purposes of sick leave and temporary disability benefits. Likewise, employers must provide reasonable accommodations for pregnancy-related disabilities on the same basis as they provide accommodations for employees who are disabled for other reasons. Employers should make sure that their EEO policies include pregnancy in the list of protected categories and that their policies on accommodations include accommodations for expectant workers.
Dress Codes and Religious Accommodation. Title VII gives religious practices “favored treatment” and “requires otherwise-neutral policies to give way to the need for an accommodation” in the absence of undue hardship to the employer. The U.S. Supreme Court has held that an employer can be liable for failing to accommodate a religious practice, even if the employer lacks actual knowledge of a need for an accommodation. According to the Court, even seemingly neutral policies are not discrimination-proof.
The #MeToo movement will lead to scrutiny of employer responses to harassment and misconduct. Employers should confirm their commitment to equal employment opportunity, making sure that the list of protected classes is up to date and includes all other classes protected by law. A handbook should also describe the reporting system, prohibit retaliation, and confirm that discipline will be imposed for breaches of the zero-tolerance policy.
A handbook should reflect the reality of the workplace and vice versa. Does one department let employees take vacation with one day’s notice, while another department requires two weeks? Are the policies sufficiently clear and comprehensive that they can be enforced uniformly? Consistency will be key if a lawsuit arises. Time spent up front to make sure that a handbook provides a roadmap of appropriate behavior, a complaint process, and proper disclaimers will be important in avoiding and defending disputes.
In addition to keeping abreast of new laws, employers with employees in multiple states must consider legal variations in all of the jurisdictions where they do business. Numerous states and municipalities, for example, have their own paid sick leave rules and family and medical leave laws that go beyond what is required by the FMLA. Employers should be careful to take state and local laws into account when drafting their employee handbook.
Jamie Hasty is the vice president of SESCO Management Consultants. SESCO provides results-oriented human resource consulting services to its members. SESCO Management Consultants is retained by ASA to provide HR support on a daily or as needed basis. SESCO also provides services related to employee handbook development and review at discounted rates to ASA members throughout the country. The arrangement provides a free “hotline” to discuss day-to-day employment issues such as policy development, employee challenges such as disciplinary actions, terminations, or workers’ compensation issues, compliance to federal and state employment regulations, and many other management and human resource matters. Hasty can be reached at (423) 764-4127 or firstname.lastname@example.org.