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Incorporate changes to at-will policies, information about exempt status and more
Procedures involving employee handbooks shouldn’t prompt employees to lie, but many of them do.
Workers don’t read handbooks from cover to cover or, if they’re electronic, from start to finish. So employers shouldn’t ask employees to sign off on having read the handbook, said Michael Cohen, an attorney with Duane Morris in Philadelphia, at a Society for Human Resource Management 2016 Annual Conference & Exposition preconference session.
Cohen said he still sees companies requiring new workers to state that they have received and read a copy of the handbook. Most will comply with the request, but have they really read the handbook? “No, they haven’t,” he said. “Why ask employees to lie on day one?” Employees likely just use the handbook as a reference when they have a particular issue, like an upcoming leave of absence, or if they want to know who to bring an equal employment opportunity complaint to, he said.
When updating policies, ask employees instead to confirm that they have received the handbook and provide contact information if they have any questions, Cohen recommended.
Don’t give nonexempt employees a handbook and ask them to take it home and read it there. That’s compensable work, he noted. Employers that really want employees to review the handbook should set aside time at work for them to do so.
Electronic handbooks are becoming more common, as they’re easier and cheaper to update, Cohen said. If your company has an electronic handbook, note that it supersedes any outstanding print version.
Be sure to have stand-alone at-will policies; don’t just include at-will language in the introduction, Cohen said. Some states, such as New Jersey, require separate stand-alone policies in bigger, bolder font, he noted. The policy should explain what at-will employment means and should note that it cannot be modified except by written agreement, such as a collective bargaining agreement.
Make it clear that the handbook is not a contract and that the company reserves the right to modify the handbook. No one in the company may set up a separate employment agreement unless it is by a senior-level official and in writing, the handbook should clarify.
Define who is exempt and what that means in the handbook, he said, but not in extensive detail. Note that nonexempt employees are entitled to overtime, but don’t go into the duties tests for white-collar exemptions.
The reasonable accommodation policy similarly should be simple, specifying who should be contacted to start the dialogue for identifying a possible accommodation without detailing how the company will determine whether the person has a disability or whether the accommodation is unreasonable or an undue hardship. “You do not have to inform the employee about all of that,” Cohen said.
Have an equal employment opportunity policy, not merely a sexual harassment policy, and a complaint procedure that includes behaviors beyond just harassment, such as pregnancy discrimination and discrimination against veterans. A Family and Medical Leave Act policy is another must-have, according to Cohen.
Define what constitutes the employer’s workweek, and note when overtime will be paid. Some states allow overtime to be held back one pay period, he noted.
Provide a complaint mechanism for improper payrolls deductions, listing who to contact and noting that a reimbursement will appear in the next paycheck.
Many employers let employees work other jobs. But include a policy that states a second job is never an acceptable excuse to not work overtime, Cohen recommended.
And note in the handbook that nonexempt employees are expressly prohibited from working overtime without prior approval. Clarify that if they work unauthorized overtime, they will be paid but subject to discipline up to and including dismissal, Cohen said.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him
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