In March 2011, BYU dismissed its star forward Brandon Davis from the basketball team for violation of team rules. In particular, Davies was dismissed from the team for admitting he engaged in premarital sex. BYU, which is owned and operated by The Church of Jesus Christ of Latter-day Saints, requires its students to “live a chaste and virtuous life,” according to its honor code. While the dismissal was a subject of national debate and scrutiny, BYU stood by its policies. Each Bowl season, a number of players are suspended by their college for violation of team rules. Auburn’s Michael Dyer is a recent example. In the NFL, the league commissioner has not hesitated to discipline players who have engaged in improper conduct such as making improper hits. Ndamukong Suh, for example, was suspended for 2 games this season for stomping on an opposing player during a Thanksgiving Day game against the Packers. In each of these situations, the enforcing body had rules and enforced them when they violated.
Having written company policies is important. But policies are only helpful if they are followed by the employer and enforced. For employers, the most practical way to implement rules is through an Employee Handbook. Every business, no matter what size, should have some form of handbook or manual that clearly sets forth its personnel policies in writing. There are several reasons why it is critical for a company to have an employee handbook. Foremost, an employee handbook is the most effective way an employer can communicate to employees about its rules, procedures, benefits and expectations. Also, by putting policies in a handbook, employers have a reference to ensure consistent treatment of employees. This is important because the genesis of many employment discrimination lawsuits is the inconsistent application of rules, which is sometimes due to confusion over unclear policies. Generally, when discipline is issued fairly and consistently, it is accepted more readily. On the other hand, when discipline is inconsistent, those being punished have a harder time accepting the discipline and are more likely to challenge it. The credibility of the entity issuing the discipline is also attacked. The NCAA is a poster child for this point.
Employee handbooks can also help protect the bottom line by serving as evidence in litigation or administrative matters, such as EEOC investigations and unemployment claims. For example, to avoid increases in unemployment insurance premiums, an employer should do what it can to combat claims based on terminations that should disqualify the claimant from receiving benefits. To defeat such claims, however, an employer must be able to prove that the employee seeking benefits had knowledge of the rules that were violated and were the basis for the termination. This burden is difficult to meet without the existence of written rules and proof that the rules were actually received by the employee.
To be effective employee handbooks must be updated and kept current. It is a good practice to review the handbook each year with a fresh pair of eyes. When changes are made to the handbook an employer should notify employees of the changes in writing. If an employer operates in more than one state it is important to customize the policies so that they comply with the applicable jurisdiction.
Some of the most common and important provisions that should be contained in a handbook include the following:
- Employment at-will statement;
- Disclaimer that the handbook is not a contract;
- Equal Employment Opportunity (EEO) policy;
- Non-discrimination and non-harassment policies;
- Open Door policy;
- A description of job categories and classifications;
- Codes of conduct;
- Email, Internet and communication policies;
- Protecting confidential information policy;
- Safety rules;
- Drug testing policy;
- Workplace violence policy;
- Compensation Policies (overtime pay, work hours, pay dates );
- Leave of absence policies (FMLA if applicable);
- Reporting of workplace accidents; and
- Description of any company benefits such as vacation, retirement and insurance, if applicable.
There are also certain things that should not be put in a handbook. It is important to avoid language that could jeopardize the at-will relationship such as promising “just cause” or “due process.” Handbooks should clearly state that the handbook is not a contract and that the employer retains the right to alter policies at its discretion. Finally, it is important to have employees sign acknowledgment forms stating that they have received the handbook and to keep the acknowledgments in the employees’ personnel files. Without an acknowledgment you may have difficulty proving that the employee had knowledge about the policies that you may later rely on to impose discipline or to defend against an unemployment or discrimination claim.
There are also certain things that should not be put in a handbook. It is important to avoid language that could jeopardize the at-will relationship such as promising “just cause” or “due process.” Handbooks should clearly state that the handbook is not a contract and that the employer retains the right to alter policies at its discretion. Finally, it is important to have employees sign acknowledgment forms stating that they have received the handbook and to keep the acknowledgments in the employees’ personnel files. Without an acknowledgment you may have difficulty proving that the employee had knowledge about the policies that you may later rely on to impose discipline or to defend against an unemployment or discrimination claim.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
