California Employee Handbook Drafting
Regardless of size, every employer should consider having an employee handbook. An Employee Handbook is a document outlining the employer’s policies with regard to issues like working hours, rest breaks, vacation time, and expectations for workplace conduct.
Handbooks help an employer to establish the conduct expected of employees as well as provide protections for the employer by establishing complaint mechanisms, anti-harassment policies, and discipline policies.
For these reasons, it is advisable for employers to make sure that all employees read, understand, and accept the terms contained in an employee Handbook. This can help prevent potential misunderstandings–and litigation–in the future as to what was expected of both the employer and the employee.
Handbooks: Employee Acknowledgement
Once an employer has a Handbook, it is important that the Handbook is disseminated, and acknowledged, by employees. Written acknowledgment can help establish that the employee was given fair notice of the applicable workplace rules. And in the event the employee–or a former employee–sues the employer or maybe even claims entitlement to unemployment (despite being terminated for violating a known-rule contained in the Handbook), this signed acknowledgment may prove useful to a judge or jury in determining what policies were actually in effect at the relevant times (and whether they were followed).
Similarly, the Handbook can provide guidelines for employees to follow for complaints. If an employee has a serious concern about an activity at work, such as a concern of illegal activity, a Handbook may designate a person responsible for fielding complaints. This is important because, in some situations, an employer can be liable for the actions (or inactions) of their management or supervisors. For example, what if an employee had a complaint about illegal activities in the workplace and reported it to their supervisor. If the employer has not educated the employee (or supervisor) about how to handle (or where to report or escalate that complaint) or if the employer does not have a policy in place about how the employee is to handle the complaint – and if nothing is done – the employer may still be liable for the actions or inactions of the supervisor, especially if the employee is retaliated against by the supervisor for the complaint.
Handbooks provide policies which can minimize confusion about expected conduct in the workplace. Under state and federal law, employers may also be responsible for discrimination or harassment by a supervisor or manager towards an employee. A Handbook may provide policies that the employer does not condone harassment or retaliation and may serve as the basis for terminating a supervisor or manager who is found to have engaged in such action.
However, a Handbook is only effective if it is disseminated – and received – by the employees, so that they are on notice of the employer’s policies.
Handbook Revisions: Updating Outdated Handbooks
If you are an employer who has been using the same handbook for many years, it may be time to consider having an experienced employment attorney review your handbook to make sure it is up-to-date with current legal requirements and still applicable to the size of your business. For example, a Handbook that worked for an employer with less than 20 employees will not likely contain applicable policies (and legal requirements) that apply to that same employer which has now grown to 50 employees. This is because most employment-related laws are “number of employee”-specific. For example, the California Fair Employment and Housing Act applies to employers with five (5) or more employees, whereas the Family and Medical Leave Act only applies to employers with 50 or more employees. Similarly, if you have grown to acquire employees in another state, it is important that your Handbook (and company policies) comply with the legal requirements in that state, as well. For instance, some states require employers to provide meal and rest breaks to employees, while others do not. If you are a multi-state employer, you may consider adding an addendum to your Employee Handbook to cover any additional employment laws required for employees working in that state.
Out of date Handbooks are not only unhelpful to you as an employer, they may also be illegal. Recently, the National Labor Relations Board took aim at many common Employee Handbook policies (like no gossip, no use of social media) and determined that those policies may prohibit concerted activities of employees and could be illegal. If you are an employer who has experienced a growth spurt or has not had an employment attorney recently review your Employee Handbook, it is advisable that you seek a consultation to make sure your Handbook is up-to-date and applicable to your business needs (and size).
Contact Scott Wagner and Associates today for a consultation to discuss drafting or updating your Employee Handbooks.