Employee Handbooks: More than a Formality

This bulletin summarizes the considerations for employers in adopting an employee handbook.  Employers often see employee handbooks as, at best, a necessary evil, and, at worst, an optional chore that they can put off indefinitely.  However, our attorneys’ experience is that the employee handbook is a valuable tool for establishing employee expectations, communicating reporting protocol, and being proactive against potential claims.

We have all been there.  The first day of a new job, you have been training all day and flooded with information, policies and names.  At some point, a Human Resources Manager hands you an employee handbook. On the way home, you toss it in the back seat of your car, never to be thought of again.

Employers may ask why even bother with a handbook.  However, the fact is, when implemented correctly, an employee handbook can provide significant and measurable benefits.  Many employers fail to realize that a primary purpose of an employee handbook is to protect the employer, not just the employee.  Consider this scenario: One employee asks for time off and is granted it. A second employee asks for time off under the same parameters, and is denied, not for any vengeful reason, but rather because the supervisor simply is unfamiliar with the company’s policy.  All the employee sees is that he or she has been treated differently – perhaps even that he or she has been discriminated against. A simple policy would have given the supervisor guidance regarding how to handle the situation and avoid disparate treatment. 

Employers also are aware of the significant risks posed by claims of sexual harassment, especially in the wake of #metoo and similar movements.  Of course, the employer’s primary concern in this regard should be to prevent harassing situations from ever occurring. A handbook provides an opportunity to do that, implementing a clear policy for reporting and prevention.  In addition to providing protections against harassing situations from arising, such a policy also allows employees and supervisors to know what their responsibilities are for reporting, and provides a layer of protection for an employer who, through no fault of its own, faces a harassment claim.

While the legal benefits of an employee handbook are significant, it would be a mistake to say that the benefits are only legal in nature.  While it is true an employer cannot always ensure that an employee has, in fact, read the handbook, the fact remains that a handbook provides a great opportunity for employers to convey to employees exactly what is expected from them and how certain matters should be handled.  For example, a supervisor should never be left guessing what the requirements are for an employee taking family leave, sick pay or accruing benefits such as vacation time. An employee handbook should always include an acknowledgement whereby the employee would sign and acknowledge he or she has received and read the handbook.  As with many other legal matters, proactivity on behalf of the employer can both reduce risk, provide greater legal protections, and lead to a better working environment for all involved. In the same spirit of proactivity, an employer who has not had its employee handbook reviewed in several years should have an attorney look at it to make sure it is up to date and reflects the current state of the law.

An important caveat: If an employer adopts an employee handbook, it should ensure that it is following the procedures contained in the handbook.  While any well-drafted handbook will include language providing that the handbook is not a “binding contract,” an employer faces risks in having an inconsistently applied handbook.  For example, if a handbook provision is applied strictly to one employee but not another, that employee may ask why they are being treated differently.  It would be better not to have a handbook at all than have a situation where it is not being applied consistently.  But the best approach is to have an employee handbook and apply it consistently. 

Our attorneys at Bell, Orr, Ayers & Moore, collectively have decades of experience advising and representing employers, including the preparation, implementation, and updating of employee handbooks.  We believe that proactivity is the best approach and are prepared to provide guidance regarding what employers can – and should – be doing to protect both their employees and themselves.  Please do not hesitate to contact Timothy L. Edelen at 270.781.8111 or edelen@boamlaw.com, or any member of our Employment Law practice group regarding employee handbooks or any other employment law questions you might have.