Revise Handbooks to Reflect Recent Legislative Changes

By Joanne Deschenaux Jul 1, 2009

NEW ORLEANS—“How many of you have revised your handbooks in the last six months?” Allan Weitzman, an attorney with Proskauer Rose in Boca Raton, Fla., asked the audience at a June 29, 2009 session “The Employee Handbook—Every Word Counts” held here. About half of the SHRM Annual Conference attendees raised their hands, and Weitzman lauded them and advised those who had not raised their hands that now was a good time to make changes to reflect recent legislative and regulatory changes—particularly the 2008 amendments to the Family and Medical Leave Act (FMLA) concerning service-member family leave and the FMLA regulations that went into effect Jan. 16, 2009.

Weitzman stressed the “three C’s.” Handbooks should:

  • Not be a Contract.
  • Communicate your policies to your workforce.
  • Comply with federal, state and local law.

He advised attendees to make sure that their handbooks did not create binding contractual obligations. State law controls whether an employee handbook can be viewed as a contract, he said.

A handbook may create an implied contract of employment if it sets forth progressive discipline plans or corrective action procedures or distinguishes between “probationary” and “permanent” employees and provides for the discharge of “permanent” employees only after specific preconditions are met, he explained.

“I don’t like the word ‘probationary.’ I don’t use the word ‘permanent’ either. When you get back to your office, take those words out of your handbooks,” he suggested.

“The best way to get around having a court call your handbook a contract is to use a disclaimer,” Weitzman continued. The disclaimer should be prominently displayed in the handbook and should advise employees that the policies and procedures are not intended to create a contract. HR should make sure to obtain a signed receipt on distribution of the handbook, he added.

However, “a disclaimer doesn’t solve every problem. It’s not a ‘get-out-of-jail-free’ card,” Weitzman reminded the audience. Even with a disclaimer, it is important for an employer to be uniform in its application of the handbook policies.

As to the second “C”—communication—the handbook should plainly state the employer’s rules, regulations and procedures. This includes the rules regarding such diverse topics as access to personnel records, anti-nepotism rules, travel policies, attendance policies, performance evaluations, payment of wages including overtime, searches on employer property and in-house investigations.

You should make sure to describe your policies designed to assist employees. “You want to brag,” Weitzman said. This includes your policies regarding all leaves of absence, employee assistance programs, holidays and flextime. Make sure to communicate your commitment to equal opportunity. “Having this type of policy is not only the right thing to do, but it will save you money,” he added.

“Ninety percent of the equal employment opportunity policy statements I’ve reviewed don’t have pregnancy in them,” so be sure to include that, Weitzman said.

Set guidelines for the termination of employment, and make sure to develop “cutting-edge” policies to take into account such issues as the use of social networking sites, blogging, telephone call monitoring and telecommuting.

And the third “C”—compliance—means you must make sure that, in addition to addressing federal employment laws, you incorporate state and local legal requirements into your handbook. Such things as workplace smoking policies, voting policies, jury duty policies, protected off-duty legal activity and breastfeeding accommodations are regulated by state laws, Weitzman noted.

Joanne Deschenaux is SHRM’s senior legal editor.

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