This session was presented on February 17, 2022.
An employee handbook is a powerful tool to communicate your organization’s policies and culture, and can help set the tone for the entire employment relationship. It can also form the first line of defense in an employment lawsuit or investigation. If your company doesn’t have a handbook, or it hasn’t been reviewed in the last year, this webinar takes a deep dive into the most important policies for your handbook and what you’ll want to consider when drafting them.
Webinar Transcript:
Marisa S. (00:00:05):
Hello everyone, and thank you so much for joining me today. I’m so excited to welcome you to our training, Taking Care of Business: Employee Handbooks. Before we begin, I just want to introduce myself. My name’s Marisa. I have worked in a variety of HR areas, including payroll, staffing, on and off boarding, managed various teams. I earned my bachelor’s in business administration and communications from the University of Oregon, and I’ve worked in both national and local companies in a wide range of businesses and industries, and I’m happy to chat with you about handbooks today.
Marisa S. (00:00:39):
All right. So some quick housekeeping items. We will email you the recording of this presentation and the slides within 24-ish hours. I’m going to hold a couple of polls during the webinar today. So I hope you will participate. Stay tuned for that, and finally, please use the Q&A box for questions, and I’ll answer as many as I can during the brief Q&A session at the end. So make sure if you do have a question, it will be in that Q&A box.
Marisa S. (00:01:12):
All right. Well, happy Thursday everyone. I am looking forward to talking to each and every one of you about creating or improving your employee handbook. Before we dive in, I just want to take a look at the agenda here. So first we’re going to talk about the purpose of an employee handbook. Why would you put time into this? What does it do for you? Then we’re going to talk about what we want to see in a good employee handbook. What do you need? What should you avoid? What kinds of things should you keep an eye on? We’ll cover various methods of implementing that handbook, and then finally we’ll discuss how to go about reviewing, updating, maintaining that handbook once you’ve put all that effort into creating it. And again, I’ll leave a couple of minutes at the end for questions that you might have. So send them on into the Q&A box as you have them. All right, let’s jump right in.
Marisa S. (00:02:03):
So to start, why do we even have employee handbooks? What do they do for our employees? What do they do for us as employers?
Marisa S. (00:02:13):
Well, we’re going to talk a lot during this webinar about how a handbook can be your best line of defense when facing an investigation or litigation resulting from one employee complaint, or who knows whatever might come up. But to set the tone I just want to share a funny, or maybe just unfortunate story with you, to illustrate how an employee handbook can also be extremely useful when you’re contesting a claim for unemployment, for example. So here’s what happened. One of our clients had an employee who was coming to work every day. They were being very unproductive. They were consistently missing deadlines and being slow to respond. Upon further investigation, our client discovered the employee had watched more than 80 hours of Days of Our Lives using a streaming service on her work computer. To make a long story short, we helped our client gather all the documentation they would need to support their termination decision. We talked them through what that might look like, gathering the electronic assets usage policy in their employee handbook, which the employee had clearly violated, and they terminated the employee, and then of course the employee filed for unemployment.
Marisa S. (00:03:19):
Now, you’re probably thinking this should be an open and shut case. The employee was in clear violation of company policy, and it’s true, the employee was denied her claim for benefits originally. But then the employee appealed, and the employer ended up attending the appeals hearing, and while they brought all the documentation they needed regarding her internet usage and the company policy about computer use with them, they forgot to bring a copy of the signed handbook acknowledgement form. So they had no way to prove the employee was actually aware of that policy, and the employee was awarded benefits. So I hope that helps illustrate one kind of extreme example. But really practical why the handbook is going to be your best friend in an employment situation, along with many others that might come up.
Marisa S. (00:04:08):
All right. So in addition to outlining the obvious, like don’t stream Days of Our Lives at work, a good employee handbook does a lot of other important things, and if you decide to put in the effort you can communicate your company’s individual history, values, mission, goals, whatever it is that you want new employees to get excited about, and maybe even current employees to get pre-excited about. It also covers what you expect from employees. So the simple things like show up on time, to the more complicated like to how you want them to fill out an expense report or what happens if they get jury duty. There’s also the often overlooked benefit of helping your managers understand their responsibilities with respect to policy enforcement. Managers and supervisors are going to be able to reference company policy at a glance and fairly and accurately enforce the policies, if their following them to the letter, which is critical to the survival and success of your organization.
Marisa S. (00:05:13):
A good handbook will also address the National Labor Relations Act, state specific regulations and protected leaves, unlawful harassment, social media activity. All of these are moving legal targets, and you’ll want to be on top of changes in those areas, and we’ll dig into some of these a bit more later in the presentation.
Marisa S. (00:05:34):
Now, let’s take a moment to discuss what your employee handbook doesn’t, or at least shouldn’t do. First on this list, we’re going to say a handbook should not function as an operations manual. We encourage all of you to have an operations or procedures manual, which will probably include specific guidelines like how the daily operations go, like food safety or the best way to clean the floors or what information needs to go into shredding bins or your preference for when to use FedEx or UPS. While these procedures are an important part of running your business, we think they’re best communicated to employees in a separate operations manual while employment guidelines are kept in your handbook. At the most practical level, this really just helps employees narrow down where they should be looking for a specific piece of information instead of sifting through some really giant document that combines all your employment policies and your operations manual, maybe even safety procedures, things like that. It’s going to be really long.
Marisa S. (00:06:34):
And then the next two items are really about preserving the at-will employment relationship, but we’re going to talk more at length about that in just a bit. Okay. So now we’re going to move to what should actually be in the handbook itself. So who’s your audience? Clearly we want regular full-time, regular part-time employees to receive a copy of the handbook. We do not want to give a handbook to independent contractors. Independent contractors can only be properly classified that way if the employer has very little control over them, meaning the employer doesn’t dictate how they do the job, when they do the job, where they do the job. The handbook, on the other hand, is 40 plus pages of telling employees exactly all those things. So if you’re expecting independent contractors to read and follow all those rules, the Department of Labor’s going to call them employees and hunt you down for all those payroll taxes you’re not paying because they’re an independent contractor.
Marisa S. (00:07:33):
So within the handbook we want to be abundantly clear about who certain policies apply to. In particular, we want to articulate who’s getting healthcare, paid time off, holidays, and make sure you’re specific about those benefits. Are they full time, 40 hour a week employees, everyone who works over 20 hours a week, all employees? You want to be very clear about these things, and finally don’t forget that you’re addressing a really wide audience. You might have high level executives with master’s or doctorates, mid-level managers, entry level new college grads, or even 16 year olds working for the summer reading this thing. So you want to make sure it’s accessible to everyone. You want to avoid legalese and unnecessarily long or complex sentences and words, and whenever possible, simplify the policies themselves, and that’s going to benefit you and them. It shouldn’t take a rocket scientist to lodge a sexual harassment complaint.
Marisa S. (00:08:30):
All right. Contents. So what all is in a good employee handbook? Well, I’ll let you know right now, our standard handbook, without any state specific guidance, has 71 policies and is 41 pages long in 12 point font. Now granted, that’s going to include a table of contents, a title page, some pages that aren’t all the way full. But I’m definitely not going to talk about every policy we would hope to see, but we’re going to hit the highlights. So first up, a welcome message is a place to give a little bit of background on the organization and set the tone for the entire handbook. What will it be like to work here? What philosophies are important to the organization? It’s a great place to make a first impression on new hires and help them feel like they should really have a sense of pride and belonging in your organization, which by the way, extra bonus, studies show that will help them become more productive in less time.
Marisa S. (00:09:24):
Next up, or at least somewhere near the beginning, you’re going to want to find an at-will employment statement. Now the at-will employment relationship is something we actually get asked about a lot. At its core, it’s describing an employment relationship that is not based on a contract. The employee hasn’t agreed to stay for a certain amount of time. The employer hasn’t guaranteed, the employment that employment will be ongoing or for a specific amount of time. In other countries, and with a number of high level executive positions, in the U.S. you will see an employment contract, and if either party breaks it, either because the employee quits or the employer terminates before the contract is up, that party’s going to have to pay damages for breaking the contract. For instance, in a former job, I had an employment contract that said I would give 30 days notice to resign. If I had just left today and I didn’t say anything and I never returned, my boss could have sued me for the trouble I caused him by not being around for the next 30 days.
Marisa S. (00:10:21):
Also, if on the flip side he’d fired me out of the blue and said, “That’s it. You’re done right now. Never come back,” he would’ve owed me 30 days of pay plus whatever benefits I already had, that kind of stuff. So in contrast, an at-will relationship says either party can end it at any time without financial punishment or responsibility, which is the kind of flexibility almost all of our clients want, and most employers in the U.S. default to. So even though employment contracts are uncommon in the U.S., in order to make sure everyone completely understands that there are no promises being made we use a policy called at-will employment. We try not to let clients get carried away with their freedom to fire. So some employers jump right to, “Well, we have an at-will employment policy,” and they want to terminate without any conversation, any progressive discipline or performance management, or sometimes even without even meeting with the employee to discuss whatever the issue is. But just because an employer has a right to do something, doesn’t mean it’s a good idea.
Marisa S. (00:11:24):
If you don’t have any record of trying to resolve a problem with an employee, it’s going to be much easier for the employee to make a claim of discrimination or otherwise wrongful termination, and when that happens, the burn’s going to land on you, the employer, to show that their practices were both fair in theory and fair in practice. Okay. Sorry about that. So another very important aspect of your employee handbook is the equal employment… Or I’m sorry, equal opportunity statement. This policy states you won’t discriminate against employees based on their inclusion in any protected class. Now on the screen here, you can see the federally protected classes. That’s the top one. You’re probably very familiar with them, or at least have heard them, heard of them or the pieces of legislation from which they’re derived like the Civil Rights Act or the American Disabilities Act. The second list is a sampling of classes that are protected by individual states, and these vary depending on what state you’re in, but these often include arrest records, credit reports, political affiliations, or even status as a smoker.
Marisa S. (00:12:29):
It’s common for employee handbooks to say they won’t discriminate based on the federally protected classes and then say, “And any other class protected by state or federal law,” and that’s a nice idea, that catchall, but many employers aren’t aware of all the classes that are protected by federal and state law, and as a result, you can get caught off guard and in a lawsuit because they simply just didn’t know the actions they were taking might be considered illegal discrimination. So that’s why we like to include a full list in the employee handbook. More knowledge is better here. Also, managers have a duty to ensure that employers, or employees, aren’t harassing one another based on inclusion in a protected class, and if managers aren’t aware of the full extent of those responsibilities here, they’re going to have a much harder time keeping your workplace in compliance.
Marisa S. (00:13:17):
So there are two primary ways an employer can get itself into legal trouble. One’s failure pay wages as required by law, state, federal, whatever, and the other is to discriminate or allow discrimination in the workplace. So this is going to help you avoid at least one of those things. Now what about exempt versus non-exempt? This classification of employees is another financial death trap for employers, not to be over dramatic, but another way of saying this is salaried versus hourly, but that’s not entirely the same thing. So only certain employees can be correctly classified as exempt. Generally, salaried or exempt employees should have mission critical responsibilities. They should be using their independent judgment regularly, managing others. They may hold a professional degree or have some combination of those qualifications or responsibilities. By and large, an entry level employee is not going to be classified properly as exempt. It really is an important topic to be familiar with. I could give an entire webinar on it. In fact, I have before. So I can’t get too much deeper into it here, but it’s definitely something you need to make sure you understand as an employer.
Marisa S. (00:14:38):
So let’s get back on track with content. Your conduct and behavior section is primarily going to cover things we would consider bad behavior by employees, how that behavior should be reported, and what’s management going to do about it. So among other things, the section will include your sexual harassment policy, a complaint procedure, a policy about employee discipline or corrective action, and I want to spend a minute on that. I’ve noticed lots of employers do want to include a really strict and detailed step discipline policy. Generally, I’m not a big fan of those strict step discipline policies being spelled out in the handbook. It’s a great idea for your managers to have a general idea of the steps we prefer to take for escalating issues. However, spelling it out in the handbook really starts to look kind of contractual, maybe too much for my comfort level, and instead we recommend having a more vague, corrective action policy that indicates appropriate corrective action will be taken based on management’s assessment of the particular situation.
Marisa S. (00:15:45):
Okay. So the compensation section of your handbook should clearly delineate pay periods, including when your work week starts and ends, when payday is, overtime rules, which in some states can be real complicated, specifics about your time keeping procedures like when employees should be clocking in and out, should they be clocking in and out for their lunch, and information about how often performance reviews will be given, if at all. I like pointing out to employers if you don’t do performance reviews, don’t be promising it in the employee handbook. That shouldn’t be aspirational, that policy. It should really reflect what you do regularly. I definitely recommend making it an actual practice rather than just aspiring to it, but do that before you commit to it in writing.
Marisa S. (00:16:31):
All right. Now the benefits section is going to cover perks as well as mandatory benefits. You can think holidays, paid time off, sick leave, health benefits and COBRA, as well protected leaves that might be required by either federal law or the states you’re operating in. Many of these mandated leaves don’t necessarily have to be in the handbook per se because a handbook isn’t actually required by law in the first place. But often, there is some kind of posting requirement that can be met by putting a simple summary in the employee handbook. It also ensures that if an employee asks for one of these special leaves, your manager’s at least going to have heard of it and know where to look for more details. This includes military leave, FMLA, voting leave, jury leave, and a number of others, like I said, depending on what state or states you might be in.
Marisa S. (00:17:23):
All right. So as long as we’re on the topic, let’s take a quick look at the kind of state specific policies an employer might be subject to. Most of them are going to fall under the category of benefits because they do things like provide protected time off, mandate sick leave or COBRA, or require that employees be paid for unused vacation at termination. But there are a few others like meal and rest periods, frequency of pay, protected classes. So when you have employees in multiple states, there are a couple of ways you can go about incorporating state specific information in your handbook. Either you can craft policies for all employees that comply with the most employee friendly rules in each state, or you can indicate that one policy applies to employees in state A, which other policies might apply to employees in state B, and it’s really your preference. Some you might choose one path, and other policies you might choose the other. Some things don’t cost you any money. Some things cost you a significant amount, so you might make it based on that.
Marisa S. (00:18:27):
You also might make that decision based on administrative burden, right? How difficult is it for us to provide seven different types of sick leave versus one that complies with everywhere?
Marisa S. (00:18:41):
All right. So before we move on, we’re going to circle back to paid time off for a minute. There’s often a lot going on in these policies, and the more clear you can be in the handbook, better. For instance, most states require you follow your own written policies with respect to whether employees are allowed to carry over any paid time off into a new year, whether they’ll be paid for any accrued time at termination. If your handbook doesn’t say anything about these policies, it’ll be assumed your practice is the most employee friendly version, meaning time will roll over, it will be paid out when an employee quits or is terminated. So if you don’t intend to offer those things and you’re not obligated to by state law, you’ll definitely want to say so in the handbook. But as fair warning, some states do require you allow carryover and pay out, regardless of whether you’d like to or not. Either way, it’s something you’ll want to cover in the handbook so all parties are clear on the rules.
Marisa S. (00:19:38):
Okay. Let’s break this section up with a poll. It’s been a little long. I’m going to hand it over to my friend Sarah here, and she’s going to conduct the poll. Oh, Sarah, are you there? Oh, looks like we might have lost Sarah here, so just one second and I will do that for her. Okay. So our question is going to be how often do you review your handbook for updates? Annually, monthly, whenever I hear a law’s changed, or I plead the fifth on that one? Okay. We’ll give it a little more time here. We’ve got about half of you, and be honest here. This is just for interesting knowledge. All right, and we’re at about 75% of you. I’m going to give you just a few more seconds here. How often are you reviewing that handbook for you? All right. Oh, looks like we’ve got most of you that are going to participate here. Okay. I’m going to end the poll in five, four, three, two, and one. Okay.
Marisa S. (00:21:15):
So you should be able to see the results there. It looks like most of you, about 43%, are doing so annually, and we’ve got a good chunk of you who maybe this is something they want to revisit. So good to know. Hopefully the information we’re talking about today is helpful. Okay. So, moving on.
Marisa S. (00:21:42):
So back into handbook contents to include. We’ll also want to see a section dedicated to health and safety policies. So in my experience, drug and alcohol policies tend to be all over the place. Some companies don’t even have one, and then I see they’ve come across the federal drug free workplace policy somewhere, probably on the internet, and they just copied and pasted it assuming it would be good enough. So if you don’t know what I’m referring to, it’s a very long drug policy with a lot of unnecessary specifics and commitments, and it’s required for certain types of federal contractors. In most cases though, a few really simple paragraphs will do.
Marisa S. (00:22:24):
But you definitely want to make sure you’re warning employees that you may ask for immediate drug or alcohol testing if you have reasonable suspicion that an employee is under the influence at work or while working, and with a worker’s comp policy we want to let employees know in writing that if they are injured in the workplace, they’ll be going through that worker’s comp system and hand in hand with that they want employees to tell us right away if they do witness an accident or an injury, or are hurt themselves. Workplace violence is where we would lay out a no tolerance policy, zero tolerance, totally zero tolerance policy for violence or threats of violence, and while we don’t recommend ending every policy with “Violation may end in discipline up to and including termination,” this is definitely one where that language is warranted and I would say we encourage it.
Marisa S. (00:23:16):
This section’s also a really good place for rules around driving. Even if you only have employees who may run an occasional errand to pick up paper towels when you run out in the break room, it’s a good idea to cover driving safety because it’s not going to hurt, right? It won’t necessarily reduce your liability if an employee is in an accident, but hopefully they will actually read and follow the policy, and that means an accident may be less likely to happen in the first place. And last on this list, we’ve got an inclement weather policy. So even if you’re located somewhere with super boring weather that never causes trouble, this policy can cover things like citywide power outages, or we’ve seen a lot of wildfires in different areas of the country and air quality issues, electric grid issues. So this is where you would want to include any policies about pay when employees either get sent home or told not to come in or, we’ve got a lot of remote workers these days, maybe their power goes out and they can’t log on.
Marisa S. (00:24:15):
So for instance, you can require employees who are sent home from an office, maybe they’ll use accrued paid time off or they’re expected to work from home if they’re able to, things like that. Now I’m also going to address in the health and safety section here, COVID, right? We’re all wondering about it. We’re all thinking about it. It is important to know that we actually recommend that you have a separate addendum for any COVID related policies just because they’re not going to likely be as permanent as these other policies. Either they’re going to change, which we’ve seen them change a lot, or someday we won’t need them hopefully, right? So it’s going to be much easier for you to update those policies that may need more frequent updates than to update your whole handbook and reissue the whole handbook again. So keep in mind that if you have policies about vaccination, about masks, about travel, anything like that that’s specifically related to COVID, we’d recommend you have those separately from the main handbook.
Marisa S. (00:25:23):
Okay. So the next section should be workplace guidelines, which is a pretty effective catchall for anything you have left, and what’s on the slide here is just a sampling of what all could be included in that section. So off-the-clock work prohibitions, meal and rest periods, lactation accommodations, social media expectations, attendance and tardiness, personal appearance and hygiene, computer or other equipment use, cell phone use, parking if you have a physical location. Okay. Now finally, I want to say a few words about what’s expected when an employee quits or is terminated, whether that’s by firing or layoff or whatever it might be. In our handbook we like to just say, “Hey, we’d love for you to give us two weeks notice.” You can request more than that. Just know that the more time you ask for, the less likely you are to get it. We do like to point out one more time, this is at-will employment and the relationship can be terminated at any time by either party with or without cause and with or without notice.
Marisa S. (00:26:27):
So we request notice, but we can’t require it, just like we won’t give it if we’re going to terminate an employee, right? So we let employees know also we want them to take their stuff with them and give our stuff back. I like to point out here, in most cases, employers should not be reducing an employee’s final paycheck if they don’t return company property, whether that be a key, credit card, a laptop, whatever it might be. In a good number of states, this is illegal, and even if it was legal in your state, there are strict limitations on how much you can actually take out of someone’s paycheck under federal law.
Marisa S. (00:27:06):
Okay. Moving on to the last page in our handbook, we’ve got the acknowledgement. Now, now that you’ve got all this great information, you want to make sure employees get a copy and they actually read it, or at least glance at it, and I strongly recommend providing time during orientation specifically for employees to read the handbook. So you’ll probably want to provide 45 minutes to an hour. We’re not asking them to read every word right then and there, but we want them to get acquainted with the document. Hourly employees in particular must be paid for all time spent working. So if you send this document home with them, you’re going to be liable for any time they spent reading it. Plus, bottom line, as much as I love employee handbooks and talk about them all day long and look at them all day long, if you send this home with someone, they’re not going to read it. No one wants to do that in their spare time.
Marisa S. (00:28:01):
If you really want the handbook to be a tool and to influence employee behavior rather than just function as written support for disciplinary actions, you do need to carve out some quality time for employees to spend with it. Now once you’ve done that, you’re going to get them to sign off on an acknowledgement page and get that in their personnel file stat. You don’t want to be the employer paying unemployment benefits to the person who got fired for watching Days of Our Lives all the time. We can avoid that just by making sure we’ve got our assigned acknowledgement. Now every once in a while we hear about an employee who refuses to sign the handbook acknowledgement. In that case, have yourself or the employee’s supervisor write near the signature line that the employee was presented with the handbook but refused to sign, add the date, and call in a witness to sign off on that as well. That documentation’s going to show the employee was aware of the handbook. They were given the handbook. They had the opportunity to review it.
Marisa S. (00:28:58):
Refusal to sign does not mean the employee is not subject to the organization’s policies, and you can absolutely expect them to follow the policies in the handbook just like everyone else, and you can still take corrective action if they don’t. I will say, in these situations, usually a simple conversation trying to determine what is it that is confusing them or that they are disagreeing with preventing them from signing that acknowledgement, sometimes just telling them that, “Hey, signing, it is just acknowledgement that you received it. Doesn’t mean you’ll like it or agree with it,” just that clarity will oftentimes bring someone around to just sign it. So a conversation’s usually helpful.
Marisa S. (00:29:42):
All right. So now that we’ve looked fairly closely at what topics are in a handbook, let’s talk a bit more about the language used. Now here are some general do’s. You want to strive for consistency in language and tone. This can be really hard if multiple people have contributed policies over the years, but the goal is to have the entire handbook feel like it’s written in one voice. The handbook’s part of your first impression on new employees, so you do want it to be a good one. Applying policies based on circumstances and severity, or at management’s discretion, also allows you to react… Or, I’m sorry, allows you the opportunity to react to situations on a case by case basis. But we do want to make sure that we are being consistent and equitable and objective when we’re making those judgements. Using words and phrases like ‘generally’ and ‘as needed’ will provide you with some flexibility. For instance, if employees will generally be allowed a 60 minute lunch break, you’ve allowed yourself the option of asking they only take a 30 minute lunch on a particular day without violating your own policy.
Marisa S. (00:30:56):
Finally, for our short list, we want to be balanced in terms of detail. We want enough that it will provide guidance to employees and managers, but not so much that it’s impossible to retain the information or that it turns into an operations manual. All right. So the actions in this list are things that would either reduce an employer’s ability to be flexible, weaken the policy itself, or put the at-will employment relationship at risk. Probationary periods should be called introductory periods. Not only does the term probation set a kind of uncomfortable tone, several courts have ruled that it implies once an employee’s out of that probationary period, they’re going to be guaranteed some sort of continued employment. So that gets us to the next point. We don’t see this terribly often anymore, but it used to be really common, and you’ll want to avoid any language suggesting that as long as you do a great job you’ll have a lifelong career at XYZ industries, right?
Marisa S. (00:31:58):
We’re not making those promises. There’s lots of things that could happen that are totally unforeseen, and we don’t want to be committing ourselves to anything we can’t deliver or don’t want to deliver. Step discipline, in most cases, is also something we want to avoid outlining specifically in the handbook. I know I mentioned that previously, but although it is great to have that solid internal process that you’re consistently following, we don’t want to give employees the impression that they can only be terminated after going through all these three or five or seven steps, and then finally we don’t want to add policies that are actually contracts into the handbook. For instance, if you want employees to sign a non-compete or a non-disclosure agreement, or an arbitration agreement, that should be entirely separate. The handbook itself isn’t a contract and we don’t want it to be. Putting a contract and a non-contract together is going to cause problems for both documents. So you want to keep them separate, and you also need to make sure a lawyer is either drafting or at least reviewing all those legal documents.
Marisa S. (00:33:08):
Okay. So under section seven of the NLRA employees have a right to discuss working conditions. Now, you might think that this only applies to unionized employees, and I can understand why you think that. But actually all employees have section seven rights. These include the right to discuss the terms and conditions of their employment, like their wages and hours, safety conditions, and to bargain collectively and ultimately seek representation if they so choose. The National Labor Relations Board enforce the NLRA, the National Labor Relations Act, and they’ve been pretty active in recent years, striking down large sections of employer handbooks, particularly confidentiality statements for being too broad, and social media policies for being too restrictive, and the most common misstep we see, however, is employers telling employees, either orally or in writing, that they can’t discuss their wages with other employees.
Marisa S. (00:34:10):
Now this kind of prohibition is illegal. It has been illegal for a long time, and there have been decisive rulings that started coming out in I think 1980, and they have not stopped, and it is something that the government pays a lot of attention to. With respect to social media, there was a recent case where an employee said many negative and ultimately unwarranted things on their Facebook page about their employer. However, one of their coworkers liked comment and even replied to it, and as surprising as this may be, the NLRB rule that even just the like constituted concerted, protected activity amongst employees. So punishing the posting employee for her statements was a no go. The moral of the story is that every handbook should have the statement that nothing in the handbook is intended to infringe on an employee’s section seven rights, and as a best practice, that we recommend trying to keep up with rulings put out by the NLRB.
Marisa S. (00:35:13):
This is a topic my colleagues and myself follow closely. So if you have access to the support center, you will see alerts and articles whenever these rules change. So we’ll stay on top of that. Additionally, I’m going to throw out there that we recommend you do not friend employees on Facebook. Just going to follow up to that social media topic there. Don’t follow them on Twitter, Facebook, or TikTok, or whatever it is now. Just don’t interact with them on social media. It’s going to open you up to a lot of liability, and frankly it’s never going to be good. Okay. So let’s just discuss a few legalities here. The law is frequently changing, and sometimes a new ordinance or a department of labor rule ends up being in conflict with something that you had in a policy before you’re even aware of it. So that’s where a savings clause comes in. We wanted to say something like “Should any provision in this employee handbook be found to be unenforceable or invalid, such a finding does not invalidate the entire employee handbook, but only the subject provision.”
Marisa S. (00:36:20):
That way, if it turns out one of your policies is a problem, we don’t have to throw out the baby with the bath water. It’s just going to be that one policy that’s no longer valid. The rest of the handbook’s going to be good to go. Aside from state specific laws, a savings clause is most likely to be useful when trying to draft around the National Labor Relations Act that we just talked about. So once you’ve got everything wrapped up in terms of content, we’re going to ensure that our formatting looks good, make sure fonts are consistent, preferably not Comic Sans or anything that looks overly casual or informal. You want to run spell check of course, and then because spell check doesn’t actually catch everything, you’re going to make sure you actually read the whole thing and go through it with a fine tooth cone. It’s also a good idea to have a table of contents for quick reference, and as for pictures, we don’t recommend them. But if you must, keep them tasteful.
Marisa S. (00:37:21):
We’ve seen employers use pictures of movie stars as examples of what not to wear, to demonstrate what they find acceptable. My favorite is a picture of Orlando Bloom demonstrating what the company considered to be tasteful facial hair. All right, let’s shift gears now and chat briefly about how to administer it once you’ve got that handbook ready to go. So as for distribution method, it’s up to you. You can give each employer a paper copy. You can send it via email. You can post it on your company’s intranet. You can send it with onboarding paperwork in your portal, whatever works best for you. What I suggest most often in organizations where most employees have a work email they can access often, is to just distribute electronically and then collect paper acknowledgement pages and then print a copy or two, leave them somewhere in the office that employees can easy access them without speaking to a manager like at the front desk or in the break room.
Marisa S. (00:38:28):
And then we recommend that every employee is given a copy of the handbook during orientation on their first day. Now as mentioned earlier, I strongly recommend you give employees time to read the handbook during the work day early on in orientation. If you want to send it home with salaried employees to read, give them between five and seven days to return it. We want to give them enough time to read it, but we also want to make sure they’ve acknowledged receipt relatively soon after they’ve begun employment. Managers and supervisors, the ones who spend the most time with employees, should be 100% familiar with the policies and procedures as they will be the first one employees turn to for questions. Managers are on the front lines and are really your best defense, or highest risk in some cases, with respect to employment claims. So we recommend finding some way to make sure your managers are familiar with the handbook, whether that’s extra time to review it, some kind of fun quiz or even a management team training.
Marisa S. (00:39:30):
All right. Time for another little break. We’re going to pause before our final section here and jump into the second poll. So I’m going to turn it over to Sarah. I think she is back to start the second one.
Sarah (00:39:40):
I am here. So sorry. I’ll give you a little break to take a sip of water Marisa. Yeah. So I’m going to go ahead and launch the second poll for everyone. So how long is your company’s employee handbook? Is it less than 10 pages, is it about 10 to 30 pages, are you sure it’s more than 30 pages, or do you maybe not have a handbook yet? It looks like about half of you have already participated. You all are quick. I’ll give you another few seconds here to weigh in. We’re always curious about this one. It looks like we do have a clear, about half of you have selected something so far. I’ll be curious if it stays. I’ll give you another three or four seconds here and then I’ll close the poll. All right. Closing in three, two, one. So let’s take a look. So it looks like just about half of you, your employee handbook is 30 or more pages. So definitely looks like we’ve got some handbooks that are a little longer.
Marisa S. (00:40:40):
Yeah.
Sarah (00:40:40):
Yeah.
Marisa S. (00:40:41):
Yeah. Excellent. All right. Well in most states, I’d say more than 30 pages is where you probably need to be with a good, comprehensive employee handbook. Like I mentioned before, our standard one with no state specific policies is already to 40 pages. So that seems like a good chunk of it, or at least in the right ballpark there. All right. Thank you, Sarah. Let’s go ahead and move forward to our final section. We’re going to talk about best practices for reviewing and updating that handbook. So generally you’ll want to have an introduction or handbook purpose section that lets employees know you could change the policies in the handbook at any time. But you do want to point out in that same section the at-will provision cannot be changed unless by an owner or an executive, and even then it must be in writing.
Marisa S. (00:41:40):
As for reviewing and updating the rest, you can do this at your discretion. We generally recommend at least taking a pass through your handbook annually to ensure compliance with any new laws, and of course if you’ve got operational changes or you’ve put supervisor’s names in the handbook and they’re no longer there, you may need to update more frequently. Side note, we just recommend you don’t put individual people’s names or phone numbers, or even email addresses, in the handbook because it just means another thing you need to update when something changes. But keep in mind, let’s say you used to offer two weeks of PTO and you’re now able to offer three weeks. So that would obviously be a good time to update your handbook, or if you’ve grown a lot, things like that.
Marisa S. (00:42:26):
So in terms of keeping up with the law, you can expect to see most changes taking effect in January or July. Some states are much busier than others when it comes to creating new employment laws, looking at you California. So while it’s a good idea to keep your ear to the ground regardless of where you operate, organizations on the west coast and east coast generally have more to keep up with. And as I touched on briefly, there are internal changes to think about. So if you grow, you may be subject to new employment laws for larger employers. For instance, as we discussed early on, many states have their own protected classes. Often those protections don’t actually kick in until an employer has five, 10, or even 25 or 50 employees. The same is true of most state specific leaves, and as you grow you’ll want to be sure you’re aware of, and in compliance with, the right set of laws.
Marisa S. (00:43:24):
Changes in structure and changes in benefits are also a reason to update your handbook. So if you change your vacation policy, your complaint procedure, your dress code, you want to make sure your information is in writing and it’s accurate, and that employees sign off on it because we want to make sure we’ve told them. Okay. So if you’ve come across one of these necessary changes, what approach should you take? Well first, you may already know that management thinks of the change. It may be their idea, but if not, or if you need buy in from more than one department, do the legwork to make sure the new policy will be met with open arms and that you’ll have management’s help in enforcing it. Then, follow the steps you see here. Articulate the policy, make sure it’s in line with the rest of your policies, distribute it to employees and get their signature of acknowledgement, and then plan to add it to the handbook the next time you do an update so your new employees will get it.
Marisa S. (00:44:32):
Now, unenforced policies can cause doubt on all of a company’s policies. For instance, let’s say you have a three strike attendance policy, which we wouldn’t recommend in the first place, and you have no history of enforcing it in the two years it’s been in the handbook, meaning you’re not actually keeping track. You’re not putting notes in personnel files. You’re not counseling employees as they rack up those absences, and ultimately you realize you’ve got an attendance problem and you should have been doing all these things. So you say, “Starting today, we’re going to follow that policy we gave you years ago.” Well, I can almost guarantee the first handful of employees who get taken to task are going to feel picked on, or even discriminated against, and if they think that could be a result of being part of a protected class, you could end up with a discrimination claim on your hands.
Marisa S. (00:45:26):
Now similarly, if you offer everyone three days of bereavement leave, but then you tell the receptionist that, “No, I’m sorry. He can’t take three days because he is absolutely vital to our operations,” you could have another problem on your hands. Whatever your policies may be, make sure they’re enforced regularly and consistently and that you’re treating all employees similarly. If you’re not upholding one policy, employees are absolutely going to wonder, “Well, if they’re not upholding that policy, maybe they don’t care about this one either.”
Marisa S. (00:46:02):
Okay. We made it. I have been talking a lot. Thank you for sticking with me. We covered a lot of information today. I hope it was a good reminder to review your handbook, or maybe create one. I’m going to review some of the questions you’ve chatted in. I did try and leave a little extra time. We always get a lot of questions on this topic. So I’ll be back in just a moment to answer some.
Marisa S. (00:46:23):
Okay. All righty. Got some good questions today. The first one is a great one about updating your handbook. So when you update your handbook do you need employees to sign a new acknowledgement form to acknowledge the new policy and policies? Do they need to sign the whole handbook again? So it’s really up to you, whether you think it’s appropriate. Let’s say you’ve done a total overhaul on the handbook and it’s half new stuff, it’s probably a good idea to just release the whole new handbook again and get a new signature from everyone. Now if you’ve just updated one or maybe two or three minor policies, or one significant one, you can totally just give them the new policy and ask for an acknowledgement on that particular change. That way you don’t have to redistribute the entire handbook. But you do want to make sure any policy that you have that you expect to hold employees accountable to, you have record that your employees have seen and acknowledged it.
Marisa S. (00:47:59):
All right. A question about what if you offer different PTO benefits to some employees than others, or other types of benefits? So we recommend that if, let’s say your part-time employees get a different PTO benefit than your full-time employees, or they don’t get any PTO but full-time employees do, that should be just really clear in your policy and it should say “All regular full-time employees are entitled to X number of hours of PTO each year.” There shouldn’t be any reason you’re hiding what other employees are entitled to based on an objective class, or criteria, or grouping. I can understand there are oftentimes employers, they don’t want to share maybe executive benefits, and that’s okay. Oftentimes those executives have contracts anyways, and so that’s going to supersede any handbook. But any differentiation in benefits from one group to another should just be clearly outlined in the handbook and you shouldn’t need to hide it from anyone.
Marisa S. (00:49:12):
Just a reminder. I’m only going to be answering questions specifically about handbooks today. I see a lot of questions in here about insurance or liabilities, or COVID practices and policies. I’m not going to get into how long should someone quarantine or how long should someone mask. But we do recommend, just in general, if you are going to be implementing COVID specific policies, you should be talking to your insurance carriers and you should be referencing local guidance as well as the CDC to make sure you’re meeting all of your obligations, and then from there you can decide what you want to do to best protect your own employees. All right. Somebody mentioned that some cities and states like New York are requiring airborne infectious disease verbiage to be in employee handbooks. That’s true. That’s not specific to COVID though. That’s just a safety policy and information that employers are required to make.
Marisa S. (00:50:17):
If you have a handbook that’s where it should go. But you’re not obligated to have a handbook. So if you don’t have one, you’re required to just disclose that to employees separately. Somebody asked if they can include in their vacation policy that they require notice of no less than 30 days for vacation of five or more days. You can certainly make those requirements for a vacation policy. Mind you, a vacation policy is going to be separate from sick leave. That may be required where you are located. So vacation’s going to have a lot more flexibility. Just know that generally, if you’re providing a benefit like vacation or PTO, most states are going to require that you make it reasonable for employees to use it. So you don’t want to get carried away with how much notice, “We require a year’s notice before you use a day of PTO,” right? That’s not going to fly. But a month’s notice for a week, for more than a week of PTO, would probably be reasonable.
Marisa S. (00:51:20):
Somebody asked if an employee should be actually given a printed copy of the handbook. We covered that a little earlier, but it doesn’t have to be physical copy. You can send an electronic copy. You just want to make sure you have record of that signature of acknowledgement, whether that’s an electronic signature or ink on paper. Okay. What word do we suggest instead of probation? Yeah, the word we discussed was introductory period. As you can imagine, when you’re a new employee at a new company, you’re excited to be there. You haven’t done anything wrong. So probation is a little negative and maybe sounds a little punitive. So introductory period is usually a little more welcoming and forgiving, and again, avoids some of that at-will employment risk. We’re a small business. We haven’t updated our handbook in 10 plus years. Should we try to update this on our own or reach out to a lawyer to help us?
Marisa S. (00:52:24):
You should definitely update it. Depending on what state you’re in, you may be best off just starting from new. 10 years is a long time in employment law. In particular, if you’re in California, six months is sometimes a long time to go without updating your handbook. In most other states, updates are happening usually at least every couple years. So you can try and do it on your own. A lawyer is a great resource. There’s lots of resources out there. You’ll just want to make sure you’re looking at a comprehensive resource that’s going to help you understand what all might apply where you are and with how many employees you have. How do you update the handbook? So that’s going to go back to what I discussed. You can just send out the new policy or policies and get a signature. It doesn’t need to be a whole new handbook. You just want to make sure you at least get an acknowledgement on those new updated policies.
Marisa S. (00:53:32):
Let’s see here. Should we be putting in base pay rates and job descriptions, things like that? Generally we recommend no. Similar to what I was talking about with administrative updates and remembering that you have to update things in more than one place like people’s names or phone numbers or emails, same here. Your base pay rates are probably going to change. You don’t need to have them on job descriptions and job postings and in whatever compensation documentation you have, and then also in your handbook. Not really something we would recommend. You should have those things documented internally, and that’s up to you how you choose to keep those records and that information and those documents. But they don’t need to go in your handbook, and really they shouldn’t go in your handbook. Okay. Let’s see here what other questions we might have. If you have questions and you haven’t sent them in yet, please just do send them in in the Q&A box there and I will try and get to as many as I can.
Marisa S. (00:54:57):
All righty. Safety policies. So if you are in a safety, a high risk industry, let’s say you are in construction or you work in a medical office or anywhere where safety is of utmost importance, we’re going to recommend that you have a separate safety manual because you likely have extensive policies and requirements, whether they be required by state or federal law, or whether they’re industry specific and required by a licensure board or your insurance or anything like that, we’d recommend keeping them separate because as you can imagine, if somebody’s looking for safety information, oftentimes that’s going to be a pretty urgent need and we don’t want them flipping through PTO policies and performance review information just to get to what to do in emergency safety situation. So we recommend keeping that separate and making sure everyone who needs that has access to it knows where it is.
Marisa S. (00:56:07):
Okay. Operations manual, someone asked what kinds of things should be included in that. That’s going to be so different for every different business. What are the things people need to know day to day? How to clock in and out, how to ship a package, how to apply for reimbursement for something, or how to invoice a client for your services, all of those things, they’re called standard operating procedures, or SOP’s. Those types of things are going to vary from business to business, and if you have multiple locations they may even vary from location to location. So it’s really hard for me to just provide general information there, but those are going to be the types of things. Think about going through someone’s day. What are the things they need instruction on, that if they were gone or if they left unexpectedly or went on leave, what are the really key pieces that other people would need to just be able to pick up really quickly and seamlessly?
Marisa S. (00:57:18):
Okay. What about employees negotiating different benefits upon hire? Frankly, we don’t recommend allowing that. Many states don’t legally allow that any longer. There are various equal pay acts, separate even from the federal Equal Pay Act. Many states have very specific requirements about why you can pay different employees different things, and pay would include any type of compensation, time off, benefits, retirement plans, all those sorts of things, and so just giving somebody more of something because they asked for it is not going to fly in a lot of states and could actually get you into some pretty significant trouble. So negotiations are something that are very much on their way out, unless you’re talking about really high level executives where there really aren’t comparable positions in the company, in which case you’re going to be looking at contracts again anyway.
Marisa S. (00:58:15):
Do I recommend that handbook revisions be a team effort by administration? I certainly think you should get input from various people in the organization. One person writing an entire handbook, or reviewing an entire handbook, for 50, 100, however many employees you might have, is probably going to leave some gaps and that’s not great. But writing a document like this by committee is certainly difficult. So my recommendation is having a point person. Usually it’s going to be whoever handles your HR stuff. Get the basics down of what you know is already what you want, or what you’re shooting for, as well as what are the minimum basics of compliance, and then maybe ask important stakeholders to review it and share their thoughts, and then go from there. That’s usually what I would recommend.
Marisa S. (00:59:07):
All right. We’ve got time for one more question here. All righty. We’ve got a question here about what I meant by minimizing legal jargon, and words that might be lost on your readers. So we would recommend your language be approachable. We don’t want people to need to pull out a dictionary or Google words every other sentence. For example, if you read a contract, you’re going to find lots of legal words that most laymen don’t understand, including myself. I don’t know what that means. I’m going to have to look it up. Somebody with, we say generally a 10th grade level education, or maybe even eighth grade level education depending on what industry you’re in and what your population of employees looks like, they should be able to read and mostly understand the document without any outside resources. So that’s usually what we mean when we say that.
Marisa S. (01:00:14):
All righty. Just a reminder, we’re going to email out the presentation within the next 24-ish hours, so you should be getting that. But otherwise I just want to say thank you. That is all the time we have. We’re right at the top of the hour here, and I hope you all have a great rest of your day. Thank you.
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