Employee Handbooks … Do You Know Where Yours Is?
When defending an employment law case, one of the first documents I ask my clients for is their employee handbook. Nowadays most employers have a handbook. It is an important tool because it will often help establish that an employer has appropriate policies and procedures in place and is committed to adhering to national and state employment laws. Handbooks should have polices on anti-discrimination, the Family and Medical Leave Act (FMLA), complaint procedures, anti-harassment, etc. When you have these policies in place, it is equally if not more important, to make certain that your employees are aware of them.
This may be easier said than accomplished, but it should start with providing your employees copies of the handbook and requiring that they sign acknowledgment forms confirming that they have reviewed and understood the handbook. As a wise mentor of mine taught me, if it is not in writing, it did not happen. Those employee acknowledgement pages come in handy when an employee is claiming to not have been aware that there was a procedure in place for reporting sexual harassment or another offense.
Laws are constantly changing and employers need to make certain that their handbooks are current. For example, the recent changes in the laws regarding marriage equality may have an impact on your leave and benefit policies. You should be reviewing your handbook on an annual basis to determine whether it is consistent with the current laws in your jurisdiction.
Employee handbooks should be used as guidelines to help employers establish uniformity in the treatment of employees. If you have a policy on point the answer is always clear, but when you have no policy this places everything in a gray area and exposes an employer to potential liability. For instance, suppose you have a female employee who has been with the company for several years and you want to reward her loyalty by allowing her some paid time off when she becomes pregnant with her first child. Now let’s say you have another female, who has only been with the company for six months and you are not as happy with her work. If you treat these females differently you could be exposing yourself to a lawsuit.
Leave policies should be part of any employee handbook. Employees have leave rights under the Federal Family and Medical Leave Act as well as the New Jersey Family Leave Act. Your leave policy should discuss both. In addition, you should mention the various state benefits the Garden State provides because as an employer you are already contributing to these benefits. These benefits include temporary disability benefits as well as family leave insurance.
You also want to mention any other leave benefits your company provides such at sick, vacation, holiday or personal days. This is not an area where you want any confusion. These policies should let employees know if there are any restrictions on their use of this time. For instance, if you do not allow an employee to be paid for a holiday when they call out the day before or after that holiday, you need to provide notice of this. Similarly, if leave time is accrued or if you do not allow leave time to carry over or be paid, you need to be specific about this.
Handbooks today should also touch upon codes of conduct, mobile devices in the workplace, social media and dress codes. Almost anyone can clean up nice and look great for an interview but when that same conservatively dressed and well groomed interviewee shows up on day one with blue hair, a variety of facial piercings and skin-tight clothing you need to be prepared to deal with it.
While it may seem self-serving, you also want to make sure that you clearly state that you have zero tolerance for discrimination or violence in the workplace. You should also provide a clear statement as to what the complaint procedure is for someone who might feel victim to this type of behavior. Unfortunately, the workplace is not immune from same type of school yard bullying that has been known to cause teens and children to consider taking their own lives, and in some cases that has tragically happened. Employees need to know you promote a safe, healthy and tolerant work environment.
With the rapid increase in the legalization of marijuana you should also consider including a Drug and Alcohol Policy in your handbook. It is still acceptable to have zero tolerance for employees that appear at work intoxicated or under the influence of illegal drugs. However, having a policy will certainly help if you are one day faced with a forklift driver showing up to work obviously high and bearing a medical marijuana card.
The only thing worse than not having a handbook, is having a handbook and disregarding it. At least once a week, I get a call from a client asking me how they are supposed to deal with a workplace situation and I find myself referring them back to their own handbook. I am always happy to do this, but your human resource professionals should be well acquainted with your policies. This is imperative to ensure that employees are being treated fairly and the employer is protected.
Wendi Barish (pictured) is the Vice-Chair of the Employment Group at Weber Gallagher law firm. She practices in New Jersey and Pennsylvania and can be reached at firstname.lastname@example.org or 215.972.7900.