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CHICAGO—When it comes to employee handbooks, what you say can get you in trouble. What you don’t say can get you in trouble. In fact, what you said a long time ago can get you in trouble. So don’t take handbooks for granted.
That was the message of two attorneys with Proskauer Rose LLP at a June 23 SHRM Annual Conference concurrent session, “The Employee Handbook—Every Word Counts,” which drew an overflow audience of HR professionals who are keen on staying out of trouble.
Allen Weitzman, a partner with the law firm in Boca Raton, Fla., asked attendees to raise their hands if they had updated their handbook in the past year. Most had. “Excellent,” remarked Weitzman. But he urged them not to become complacent by virtue of such annual reviews:
“The legal importance and ramifications of the guidebooks we use are growing immensely in this litigious society.”
Handbooks have come a long way, noted Weitzman. Originally devised as a method to counter labor union efforts, they have “become much more legally binding” as courts have found parts to be, in effect, promises or contracts. That’s why every word counts.
“Put in a little legal wiggle room,” said Weitzman. For example, he said, avoid saying “We will review your performance annually” and “We provide a safe working environment.” Far safer to say: “Generally, we will review your performance annually,” and “We strive to provide a safe working environment.”
And even though it’s great to update handbooks regularly, a lot of baby boomers are retiring these days, and some might pull out of their desk a handbook from the mid-1970s. And that could be trouble.
Similarly, when you present employees with a handbook, get a signed receipt for the document. “Keep [the receipts] where you can find them,” Weitzman emphasized.
Invite employees to ask questions, and remind them that “this is not a contract and that no supervisor can change anything in this handbook.”
Even with disclaimers, “You need to follow your procedures,” said Weitzman. “Be uniform and consistent in the way you apply these policies.”
Tailor Your Handbook
“One shoe does not fit all when it comes to handbooks,” said co-presenter Marc A. Mandelman, senior counsel with Proskauer Rose in New York. “They must be tailored to your particular business.”
He noted that state laws vary considerably on some aspects of employee relations. For example, restrictions for handling employee requests for employment records are far from uniform across the country. It’s critical to have a policy that spells out employee rights to copies of documents that are consistent with the law in the employer’s state.
Handbooks should make it clear that employees’ work is the employer’s property, and that employees should not expect that they have a right to privacy in the workplace—with the exception of some public-sector employers.
Employees should know as well that they are expected to cooperate in internal investigations or risk discipline. And “every employer absolutely must have an Internet and e-mail policy.”
But policies that prohibit any personal use of technology are no panacea. “The problem with blanket provisions is that they are very difficult to enforce,” advised Mandelman.
And even though it should be obvious that, barring specific instructions, employees cannot fly first class, stay at the Ritz or drink a $1,000 bottle of Bordeaux wine on company travel, it all needs to be spelled out in the handbook.
Employers need to be careful with confidentiality policies as well. Avoid making them overly broad, advised Mandelman. All employees—even those in non-unionized companies—are protected by the National Labor Relations Act, he noted, and certain activities, such as discussion of salaries, are protected.
Steve Bates is manager of online editorial content for SHRM.
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