One of the most common questions I receive from employers is, “Do I really need an employee handbook?” The short answer: Yes. For the longer answer, keep reading.
A well-written, lawful employee handbook has no downsides. It provides an employer with the flexibility to address innumerable employee actions and inactions. Only a “bad” employee handbook does more harm than good. Problems stem from drafting handbooks without thought, customization or legal advice, or a failure to update existing handbooks.
The following are key points for a “good” employee handbook to consider when tackling this important project.
It serves many purposes: A handbook sets the tone for your workplace environment and culture. It communicates your business rules and performance standards, encourages employees to behave in a certain way, helps ensure employees are treated consistently, publicizes your employment benefits and maximizes an employer’s ability to win unemployment claims and lawsuits. Your handbook and the employee’s signed acknowledgement form are almost always exhibits in a lawsuit.
Imagine a jury looking at your employee handbook. What does your current employee handbook say about your workplace? A handbook is also an excellent way for an employer to take credit for what the company does for its employees. Even though employees won’t always follow the rules, they do like to know them. A good handbook should tell employees your expectations, not only to avoid disciplinary action, but how to succeed.
It covers the basics: A good employee handbook should at least tell employees how to: request time off, report possible harassment or discrimination, keep a time record, take breaks, report theft, work safely, maintain confidential information and report pay issues. It should communicate your drug and alcohol policy. It also should include the various types of paid and unpaid time off offered to employees — even if such leave is required by law.
You also need some rules. In most states, winning an unemployment claim requires proof that the terminated employee was on notice of a certain rule and was warned that violating the rule would lead to discipline or immediate termination. A well-written employee handbook lays the foundation for a successful unemployment defense or even a wrongful termination case.
It’s not copied off the Internet: There is no one-size-fits-all handbook for every employer. Internet handbooks and even forms from reputable sources may miss specific state or local requirements, such as mandatory paid leave or additional protected classes for purposes of anti-discrimination laws. Also, the last few years have yielded many legal decisions finding handbook policies unlawful that otherwise seemed harmless because of the legal subtleties of employees’ rights to engage in protected activity about their working conditions. Review by an employment lawyer is your best bet to help avoid inadvertently unlawful language.
It’s not a substitute for good management: Some employers try to use a handbook as a supervisor manual. It shouldn’t be. If your supervisor has a hard time counseling employees — from excessive tardiness to failed production goals — work with your supervisor, don’t write a step-by-step guide for the supervisor to follow that you publish in the handbook. A good handbook provides just the framework for managers to follow.
It’s helpful as an HR audit: What is your drug testing policy? How will you handle discrimination complaints and investigations? How do employees call off their shifts? Have you properly classified workers as overtime exempt? What is your vacation policy? These are some internal issues that need to be addressed and often arise when updating an employee handbook.
It’s flexible: Your handbook needs should reflect compliance with applicable federal, state and local laws related to the employment relationship. Some things, like required Family Medical Leave Act policies, don’t allow much flexibility. Other areas — like discipline — do. But employers should think carefully before making promises in a handbook beyond what the law requires — particularly if it reduces employer discretion.
A promise in a handbook might be legally enforceable. For this reason, I often recommend avoiding a formal, progressive discipline policy that lists rule violations and their specific “punishment,” or a “three-strikes-you’re-out” policy. Certain laws, such as the Americans with Disabilities Act, may require discretion in administering some policies, like attendance. Don’t get stuck with an under-performing employee because you have your hands tied by a poorly written employee discipline policy. Working with employment lawyers will help you avoid this.
It’s current, relevant and available: Laws change and so do employees and your business. Particularly with cannabis businesses, you may be moving from startup mode to a more established workplace and it is time to consider what policies work and what do not.
A handbook is a “living” document that is updated and revised frequently. It also must be accessible by employees. Even the very best handbook provides no benefit if the employer cannot “prove” the employee received and understood to follow it.
In sum, it’s worth the investment – likely less than you think – to publish a well-edited, well-written, employment law attorney-vetted, employee handbook.
Catharine Morisset is an experienced litigator and partner in the Seattle office of Fisher & Phillips LLP, a national law firm committed to providing business solutions for employers’ workplace legal problems. She and her colleagues counsel cannabis retailers, growers and other supporting industries with operations in California, Colorado, Oregon and Washington in all aspects of employment law. She can be reached at firstname.lastname@example.org.[contextly_auto_sidebar]