Practical Advice for Employee Handbooks in 2018

Regular review of your employee handbook should be part of every business’s best practices. Although you may not think your employees pay much attention to the contents, its provisions can either help or hurt you in an employee dispute. If drafted without regard to legal standards in your specific area or if not updated frequently enough, an employee handbook could expose you to legal liability.

A successful, concise handbook is both informative and helpful to your management and staff and can be protective of your business by defining encouraged or prohibited behavior. The trick is knowing what should go in and what should stay out. It is imperative that you include the legal necessities and that they are presented clearly, understandably, and explicitly.

Provisions which may have been useful decades ago, but have since become outdated and possibly illegal need to be removed. An example of this is the questionable policy of pay secrecy punitive clauses. These clauses prohibiting employees from discussing salaries, wages, and benefits could be violative of the National Labor Relations Act or the NLRA. Almost all businesses are subject to the NLRA, and section 8 of this law instructs that businesses are not allowed to “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Section 7 employee rights include their ability to organize, form or join a union, collectively bargain, act together for mutual aid or protection, or choose not to do any of these activities. Rules banning employees from discussing their pay could fall under the NLRA prohibitions. Punitive pay secrecy clauses are also disfavored in terms of promoting gender pay equality as they inhibit women from learning what they make in comparison to their male colleagues.

A handbook should, however, contain clearly defined sexual harassment policies. Especially after the #metoo movement, if you have not reevaluated your business’s policies on sexual harassment and how those policies are communicated through your handbook, it is time to do so. It is an important current topic which is at the forefront of workplace issues. Plainly articulate that you do not condone and will not tolerate any form of sexual harassment. Your policy should include clear instructions on how to make a complaint with more than one avenue to raise the issue.

Another hot-button issue is the Family Medical Leave Act (the FMLA) and its requirements. If an employee meets the requirements for length of employment and hours per week, the FMLA provides up to 12 weeks of unpaid leave per year without the threat of the employee losing his or her job. This law applies to employers with more than 50 employees and has been in the news lately due to how employers are dealing with “bonding time.” Bonding time is afforded to individuals with a new child, either after birth or adoption. The EEOC has found businesses to be discriminating based on gender by affording women more bonding time than men. It is important to carry out FMLA leave policies in a gender-neutral fashion, since bonding with a new child is a right both genders enjoy.

Another potential discrimination issue which may need to be addressed in your handbook concerns medical marijuana. In states where the medicinal use of marijuana is legalized, a policy which punishes positive cannabis drug test results could be a problem. Although employers are not required to accommodate use, possession, or being under the influence of the drug at the workplace, firing based on a positive test could subject your business to discrimination charges. A number of states, including Pennsylvania under 35 P.S. § 10231.2103(b)(1), have antidiscrimination clauses in their medical marijuana laws prohibiting firing, adverse job requirements, or refusing to hire an individual based on medicinal use of cannabis.

With a myriad of issues necessary to include, it is also important not to allow your handbook to become so lengthy and detailed that not a single employee reads it. In some policies, the provisions are so long-winded and outdated that no one adheres to all of them. This selective rule-following seriously undermines your handbook in the minds of your employees. A recent Central Penn Business Journal article by Claudia Williams spoke about the difficulty in clearly stating a dress code, and how Mary Barra, the CEO of GM, boiled her company’s entire dress code down to two words: “Dress Appropriately.” How many other provisions in your handbook might be better addressed by effective management rather than rambling handbooks?

You must address the issues where you need to offer guidance, in a legal and nondiscriminatory way. The rest should be left to competent management and self-governance through effective office culture.

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