I’m regularly asked by our brewery, brewpub and restaurant clients whether it makes sense to even have an employee handbook. My response? You bet! When drafted properly, handbooks are guidelines on your expectations, policies and benefits. It can be the cornerstone of your defense when an employee sues you for discrimination or other employment claims.
Look at it this way: You likely have a set of policies in some form anyway. Put them in one central place instead of scattering them on a bulletin board.
What to include
As an employment and trial attorney representing employers, there are certain things I want to see in a client’s handbook, starting with the “bookends.” Right after the cover page, you should have a clear and conspicuous disclaimer that includes:
“Nothing in this handbook or any other policy, procedure or practice of the company is intended to create an expressed or implied contract, guarantee, promise or covenant of any type. Employment at the company is at will, which means that it may be terminated by the employee or the company at any time without notice, cause or any specific procedures.”
The other bookend is an acknowledgement agreeing to the disclaimer and policies, signed by the employee and placed in the personnel file. This approach helps avoid claims that your handbook is a contract or guarantee.
Depending on your number of employees, a handbook is a great place for must-haves such as your Equal Employment Opportunity policy, anti-discrimination/harassment policy, Family and Medical Leave Act policy (if you have 50 or more employees) and other crucial leave policies.
Other policies I like to see include reasonable accommodation, computer and cellphone use, email and internet use and monitoring (reminding employees that there’s no right to privacy when on your devices or network), solicitation/distribution, corrective action, discipline and discharge, a good explanation of vacation or paid time off and a summary description of benefits. This list isn’t exhaustive, and there may be additional policies specific to your business that you should include.
What not to include
Then there are things I don’t want to see:
- “Cause” and other problem words such as “promise” and “guarantee” — those words are inconsistent with at-will employment (above) and can get you sued for breach of contract.
- “Progressive discipline” — this is really a union employer concept and can require you to follow certain steps before you fire an employee. You should practice, but not preach (publish), a policy of progressive discipline.
- The other “F” word — some states recognize claims for breach of the covenant of good faith and fair dealing. It’s similar to a breach of contract claim. If “fair” exists in your handbook, get rid of it.
- Confidentiality/noncompetition policies — you can summarize your requirements, but confidentiality and noncompetition should be addressed in separate agreements signed by your employees.
- Arbitration policies — along similar lines, arbitration clauses should be stand-alone agreements. Remember the part above on how your handbook is not a contract? If you want arbitration agreements to be enforceable, they should be separate.
Again, this list is not exhaustive.
Whether you are rolling out a new or revised handbook (review annually) in hard copy or electronic format, less is more. 80-page handbooks usually can be 40 pages. Also, make sure you’re getting a signed acknowledgment from your employees every time your handbook is updated. If drafting the handbook yourself, skip the internet and find a sample applicable to your industry that has been vetted legally. Let us know if you need help.
Todd Fredrickson loves beer. In his day job, he’s a partner in the Denver office of Fisher Phillips, a national labor and employment law firm.