By the Human Resources Team in Keystone’s Risk Management Division
An employee handbook is not legally required but is a best practice for a few reasons. First, it will help your organization comply with applicable federal and state employment laws such as those relating to harassment, discrimination, leaves of absence, and wage and hour concerns. Failure to have policies on topics such as these is an open invitation for legal claims. Without clear policies, your leaders will lack the knowledge they need to properly address these key issues.
In addition, certain state and federal laws require employers to provide notice to employees about their rights and the employer’s obligations. This includes the federal Family Medical Leave Act and many state and local laws relating to paid sick leave, leaves of absence, and harassment.
A well-written handbook will also clarify expectations. For example, policies relating to attendance, conflicts of interest, codes of conduct, and outside employment will set clear boundaries for your employees. Lack of knowledge about employer expectations will cause confusion for both employees and leaders. Neither will know the boundaries within which to act which can result in leaders managing individuals inconsistently. Inconsistent treatment of employees can lead to poor morale and claims of discrimination.
Your Handbook Should be Your Handbook
You may be tempted to take a shortcut and download a sample from the internet or take another organization’s handbook and re-brand it as your own. This will create risks, such as failure to comply with employment laws applicable to your organization. It can also create unnecessary liability for your organization if the borrowed handbook includes policies that address state or local laws that do not apply to you. Your employee handbook should uniquely reflect your organization’s compliance needs and internal policies rather than those borrowed from somewhere else.
A borrowed handbook may also include policies that are poorly written. Policies that are vague or too broad will be hard to understand and even harder to administer. They also put the organization at risk of violating certain laws related to employees’ rights in the workplace. It’s best to have an expert draft your handbook, such as a qualified HR professional or employment lawyer. This will increase the chances that your handbook is compliant with applicable employment laws and HR best practices.
Your Handbook Should be Up to Date
Having a handbook that is not regularly updated can be just as risky as not having one at all. Employment laws change frequently, especially at the state level. Failing to update your handbook on a regular basis could leave you with a handbook that is out of compliance; thereby increasing the chances of a claim. The organization may also need to add or amend policies based on internal organizational changes and cultural trends. Take social media policies for example. They were not needed a decade ago. But today, all employers must clearly state their expectations for use of social media account on and off the job, to both employees and leaders. The same is true of remote work and the use of employees’ personal electronic devices, such as tablets and smartphones, for work. Policies are needed where these issues apply to avoid confusion and set parameters.
Consider establishing a review standard for your employee handbook. Typically, every two years is a good goal. However, an annual review and update may be needed where you have employees in states such as those mentioned above.
What Should not be Included in a Handbook?
Handbooks should not contain procedures. Procedures are step-by-step instructions on how to carry out a specific task or process or policy. Procedures should generally not be included in an employee handbook because:
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they change frequently;
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can make the handbook too long and difficult to navigate; and
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often vary by role, department, or location which might confuse those to whom they don’t apply.
Handbooks should only contain policies, and these policies should apply to all your employees. A policy is a high-level guideline or rule that defines what should be done. It sets expectations and provides a framework for decision-making. Policies include broad, outlining principles but do not detail how to implement them.
In short, policies define the “what” and “why,” while procedures explain the “how.” With few exceptions, the “how” should be left out of handbooks.
What about Union Employees?
When employees unionize, there is often a binding Collective Bargaining Agreement (CBA) between the union and employer. Several important things should be noted about the interaction of an employee handbook and a CBA:
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CBAs Take Precedence – If there is a conflict between the employee handbook and the CBA, the CBA overrides the handbook for unionized employees since the CBA is a legally binding agreement whereas the handbook is a general guideline for organizational policies.
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Separate Rules for Union and Non-Union Employees – Some policies in the handbook may apply only to non-union employees, while union employees follow the CBA. For instance, policies on paid time off and overtime often differ. The disclaimer mentioned below will clarify that where there is a conflict, the CBA will control.
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CBAs May Cover Areas Not in the Handbook – The CBA may include specific provisions about job security, seniority, overtime, and dispute resolution that are not detailed in the handbook. Employees covered by the CBA should refer to their agreement for those matters.
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The Handbook May Cover Areas not included in the CBA – Harassment is an important topic not usually addressed in a CBA. Employers include a Harassment policy to reduce risk and increase compliance with the law. Handbook policies that address employment laws such as discrimination, harassment and Family Medical Leave will cover union employees as well.
The best way to address the interaction of a CBA with the handbook is by using a disclaimer in the handbook. The disclaimer should state that for union-represented employees, the provisions of the CBA prevail over any conflicting policies in the handbook.
Need Help?
If you are an employer who would like help developing your employee handbook, or if you have questions about any HR issue, contact our Risk Management Division by phone at 855-873-0374 or by email at . We will be happy to help!
Disclaimer: This information is for informational purposes only and not for the purpose of providing legal advice. This article does not create an attorney-client relationship between Keystone’s Risk Management Division and the reader.
