Have You Updated Your Employee Handbook?
By Mary Anne Ackourey


Most every employer has on its "to do" list the task of updating its Employee Handbook. Too often, however, this important task stays on that proverbial list month after month and, many times, year after year. The importance of keeping your handbook up to date and reflecting best practices cannot be overstated. Not only is it an important communication tool to new and current employees about your practices, but handbook policies can be critical to avoiding litigation.

For example, does your handbook have a comprehensive FLSA policy that makes clear employees are not required to work "off the clock?" By putting this prohibition in writing and setting out a specific complaint procedure, you eliminate or substantially minimize the likelihood that a disgruntled hourly employee can belatedly and falsely claim he was being forced to work through lunch, at home or after regular hours without being compensated. In addition, a best practice FLSA policy should contain the required safe harbor language from the Department of Labor in the event you make improper deductions from an exempt, salaried employee. A written policy eliminates the possibility that inadvertent deductions can destroy the overtime exemption for a salaried employee, triggering liability for all overtime worked by that employee (and others) subject to the same mistaken deduction. This policy literally can be the difference between a mistake costing you a few dollars and defending a class action lawsuit.

Likewise, is your EEO complaint procedure really "state of the art?" Most employers have some form of "harassment complaint policy," but many are too restrictive and don't encompass all statutory or other categories that should be included. Today, we commonly see claims for failure to provide an ADA accommodation or failure to provide FMLA leave. By including ADA and FMLA in your EEO complaint procedure, you minimize the potential for employee claims long after the fact that they really did ask their supervisor for an accommodation or leave. By making sure your complaint policy is broad enough to encompass these issues (and many others), you can avoid the "swearing contest" that underlies many lawsuits because you can show the employee never used a readily available complaint procedure. This is strong evidence that, when the employee, years later, claims he made a request, you can show he is not telling the truth.

An important component of a complaint procedure is not only to make sure it is broad enough, but that it mandates your employee to report claims to someone other than his supervisor. The complaint policy also should have an appeals procedure to a high level person such as the head of HR or the CEO. Too many out of date complaint policies simply give the employee an option of reporting a complaint to several people, including the employee's supervisor. In these litigious times, serious complaints must eventually be decided by a high level individual and not a lower level supervisor or business manager. Also, by giving the employee a right to appeal the initial decision, such a policy allows multiple people to review the situation, and this prevents the typical employee claim that "my supervisor was biased and he made the decision."

Updating your handbook will allow you to modernize your policies in these and many other areas. Moreover, a revamp of your handbook will allow you to insure your policies are consistent and work in conjunction with each other. In many situations we see, handbooks have been amended ad hoc over the years. The end result is that they not only omit needed policies and verbiage, but particular parts of the handbook may contradict other parts. A common error is that many policies such as appropriate internet/email conduct, workplace violence, "open door practice," do not mesh with the EEO policy and contain conflicting complaint procedures. Also, many employers simply cut and paste policies from the internet without realizing that the policies are defective or not compliant with new legal developments.

Two common explanations for not regularly updating a handbook are cost of publishing a new handbook and the need to revise the handbook regularly. Here, technology can help in multiple ways. Any employer can inexpensively set up an intranet (or separate, restricted area of its website) where the current version of your handbook is kept. Changes can be made at any time without the arduous task of distributing updated handbooks every time for minor changes. Simply have all employees sign a statement acknowledging that they know the current version is on-line.  Also, you can keep on-line all employee forms such as a complaint form, FMLA applications, ADA accommodation requests. Once again, this not only is a best practice that employees will appreciate, but it is an important litigation prevention tool. Many lawsuits start with employees claiming they "tried to get a form, but no one would give it to me."

Updating your handbook (and other related employee policies) so often falls by the wayside because of other pressing issues of the moment. It is understandable. We all know that crises come first. Still, making the effort to update your handbook and put it on-line is a valuable expenditure of time and money. The cost is minimal compared to the cost of defending an EEOC charge or worse, the cost of defending a lawsuit. In terms of expense versus benefit, there is nothing in the human resource field that yields more rewards than making your handbook and basic policies truly “state of the art.”

For more information, contact Mary Anne Ackourey at 770.818.1407 or [email protected].

 



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