Employee handbooks: A sword or shield?
Philip Dickey, MPH, PHR, SHRM-CP
Partner, Director of Human Resources
Why have an employee handbook? One common mistake by some doctors is failing to realize the need for well‑defined practice policies. Too often, doctors simply allow practice policies to evolve. Policies and procedures created on an ad hoc basis can lead to confusion, chaos and, sometimes, claims of discrimination or wrongful termination. If that happens, it can be a costly and time‑consuming experience.
Moreover, with the increase in wrongful termination litigation, the need for well-drafted personnel policies is more crucial than ever to defend against private lawsuits and government agency charges. Policies that are poorly worded, vague, or incomplete can and will create confusion between the employer and employee, and will end up being strong evidence for plaintiffs in wrongful termination litigation (the sword). By contrast, an up-to-date, well-drafted employee handbook describing the practice’s basic policies will reduce confusion and often provide effective defensive evidence (the shield) for the employer in the case of such litigation.
A handbook can serve to effectively communicate practice policy, reinforce awareness of specific laws, serve as written proof of a practice’s expectations, and be a valuable orientation and training document. Each medical practice is unique and one of the biggest mistakes employers make is to simply download a generic employee handbook from the Internet. Practices should consider developing a handbook that includes policies specifically customized to their size, specialty or specialties, and state.
For a long time, the decision to use written personnel policies has been seen as a matter of management style than one of legal requirements. However, a number of state and federal regulations passed in recent years require written personnel policies and/or postings on particular subjects. This is a growing trend, and many doctors who have not published personnel policies in the past are now being forced to address the issue. Personnel policies do not have to be assembled in a manual or handbook, but this is the most common format. The employee handbook and any updates should be made accessible to all employees and each employee should sign an acknowledgement form.
An employer that has not reviewed its personnel policies in recent years should do so and seek the advice of legal counsel or other appropriate professional to assist in updating these policies. Practices creating a handbook for the first time should carefully consider the structure and policies they wish to incorporate.
Here are some steps to consider when creating or updating your employee handbook:
- Employee handbooks should include a disclaimer that nothing in the handbook creates a contract for employment or alters the employee’s at-will employment relationship. Handbooks also should include a disclaimer that the handbook cannot address every situation that could possibly arise in the workplace in order to give the employer flexibility in addressing unique situations.
- Changes to Federal and State law. Just as a practice grows and changes, so do federal and state laws, employee handbooks should be updated annually to reflect these changes. If your handbook does not include the latest policies, it is out of date.
- Email, social media and technology policies.Today it is important for an employer to outline social media and technology expectations. Employers should properly delineate how to use electronic communications and employees should be notified if the practice plans to monitor computers and phones. Although it is important for employers to outline best practices for social media, practices should not be overly restrictive. For example, no practice wants employees to bad-mouth it on social media. However, a prohibition against any employee speech that could reflect negatively on the practice or physicians may violate the employee’s rights under Section 7 of the National Labor Relations Act. Employees also often have the right to discuss wages and other work issues with fellow employees without reprisal. The Trump Administration has eased some restrictions since making appointments to the National Labor Relations Board.
- At will Statements. Employment in most states is “at-will” which means that either the employee or the employer can choose to end the employment relationship at any time, with or without cause or notice. However, if the employee handbook does not clearly indicate this important status at the beginning of the handbook, it can create problems. Outlining at-will employment expectations in your handbook will help clear up any confusion about the nature of employment and potentially prevent costly litigation.
- Family Medical Leave Act (FMLA). Employers with 50 or more employees must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period under certain circumstances. It is important to properly outline employee eligibility requirements, procedures and guidelines for when the employee returns to the workplace to make the transition well organized for both the employer and employee. FMLA regulations changed in 2010. If your handbook has not been revised since then, your FMLA policy is out of date.
- Overtime, vacation and sick time. It is also important for employers to clearly outline benefits and attendance policies in the workplace. The employee handbook should address which employees are eligible for overtime pay and the internal process for approval of overtime. It is also important to stipulate that excessive absences or tardiness is grounds for termination to avoid any ambiguity with the employee.
- Discipline in the workplace. Handbook policies should list the type of conduct that may result in employee discipline and potential penalties for infractions up to and including termination of employment. However, the handbook should not include a rigid “step” disciplinary system from which the practice cannot deviate, which would leave the practice ill equipped to handle serious incidents if it is the employee’s first infraction. Disciplinary policies should always include the disclaimer that the practice reserves the right to skip one or more steps as necessary, depending on the severity of the infraction.
- Anti-harassment and discrimination policies. Not only is it vital that employers make it clear that no unlawful harassment will be tolerated in the workplace environment, but they should also clearly outline avenues for employees to report complaints of harassment or misconduct. Employees who have witnessed or experienced harassment should know there would be no retaliation for reporting complaints in good faith. The #MeToo Movement has certainly brought harassment to light.
- Keep your employee handbook user-friendly. Maintain a concise document, free of ambiguity, and legalize.
- Apply Policies Consistently. Enforce the policies in your handbook the same way with everyone, every time. Inconsistent enforcement can have a negative effect on practice morale. It can also reduce the importance of your employee handbook if it appears that the policies do not really guide how employees are treated. Even worse, it can subject the practice to a claim of discrimination if the practice disciplines employees differently for the same infraction.
There is a lot to consider when implementing or updating an employee handbook. Addressing this matter in 2018 is a perfect way to review policies new and old. When done the right way, it will be a valuable tool, and set the practice in the right direction while being a reliable defense in case of litigation.
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