The Franchise Owner's most trusted news source


Log In / Register | Dec 17, 2017

Ugly Truth #1: The Best Employee Handbook in the World Will Not Prevent a Lawsuit (but a Bad One Could Help the Plaintiff Win)

Every business is different, and there is no “one-size-fits-all” employee handbook.  Your handbook should directly reflect how your company actually operates, its culture and its expectations. As such, avoid using a handbook you found on the internet that contains provisions and policies that have nothing to do with your business or contains rules you will not actually follow or enforce. Revise or replace outdated handbooks.  Keep your handbook concise, avoid legal terminology and use language that your employees will understand.  The basics of what you should include are as follows:

Include an At-Will Disclaimer

Mississippi is an at-will employment state, as is the case in most states.  At-will employment means the employee works for the employer at the employer’s will.  The employer may terminate the employment relationship for good reason, bad reason, or no reason at all.  Likewise, the employee can terminate the relationship at any time.  However, in the case Bobbitt v. The Orchard, Ltd., 603 So. 2d 356 (Miss. 1992), the Mississippi Supreme Court held that if a handbook contains detailed policies and procedures to be followed when terminating an employee, it can create an employment contract, destroy the at-will relationship, and expose an employer to a breach of employment contract claim if the employer did not follow its own procedures in terminating the employee.  However, if the handbook disclaimer expressly provides that the employment relationship is at-will and can be terminated at any time, the employer has not waived the right to unilaterally terminate the employee by setting forth a grievance process in the manual.

  • The disclaimer should be clear and conspicuous. Disclaimer language should also be included in all other documents given to the employees, such as job applications, profit sharing plans, and memoranda regarding employment benefits.
  • The language should make clear that the employee’s employment is terminable at will, and that nothing in the handbook should be construed to alter the at-will relationship.  Avoid “contract-like” language.
  • The disclaimer should express that nothing in the handbook should be construed as creating a contractual relationship or as implying a guarantee of continued employment or benefits.  Use “may” and avoid “will” or “shall” or any language that suggests the company is promising to do something or confer specific benefits.
  • The disclaimer should make clear that the employee handbook provides only general guidelines as to company policy and should not be read as including the fine details of company policy or procedure.  The employee should be directed to appropriate management personnel for more information regarding particular policies.
  • Handbook language should reserve the company’s right to change, modify, supplement or revoke its policies at any time, with or without notice to the employee.  Although employers should keep employee handbooks up to date to accurately reflect company policy, disclaimer language should caution employees that changes in policy are not dependent upon the changes being reflected in a revised handbook. 

Equal Employment Opportunity Statement and Anti-Discrimination / Harassment /Retaliation Policy

  • Statement that employer will comply with applicable federal and state law and provide equal employment opportunity without regard to race, color, religion, gender, sexual orientation, age, national origin, disability, veteran status or any other protected category. ▪ Definitions of discrimination, harassment, retaliation.
  • Requirement that employees report to his/her supervisor or HR any complaints of unlawful conduct, without fear of retaliation. ▪ Specific reporting instructions, that allow employee to bypass supervisors who may be the source of the unlawful conduct.
  • Statement as to company’s investigatory process for complaints and corrective/disciplinary action for unlawful conduct.
  • Effective policy can provide valuable legal defense.
  • Include policy regarding consensual workplace romantic relationships.

Americans With Disabilities Act (“ADA”)

Prohibits discrimination and ensures equal opportunity and access for persons with disabilities.  The ADA also requires employers to provide reasonable accommodations, i.e., changes to the workplace or job -- to allow employees with disabilities to do their jobs.  The ADA, like other federal employment statutes, anticipates an interactive process between the employee and the employer to reach a reasonable accommodation, and for this reason, it needs to be in your handbook so that your employees are made aware of the need to initiate the process with their employer.

Pregnancy Discrimination Act (“PDA”)

The PDA amended Title VII of the Civil Rights Act of 1964 to "prohibit sex discrimination on the basis of pregnancy."  The Act covers discrimination "on the basis of pregnancy, childbirth, or related medical conditions."

Family Medical Leave Act (“FMLA”)

The FMLA entitles eligible employees of covered employers to take up to twelve weeks of unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

Fair Labor Standards Act (“FLSA”)

The FLSA establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments.

Uniformed Services Employment and Reemployment Rights Act (“USERRA”)

Protects the right of employees to be reemployed in their civilian job if they leave that job to perform service in the military service and protects service members from employment discrimination and/or retaliation based on their military service.

Code of Conduct / Discipline Policy

Outline acceptable workplace conduct, and unacceptable conduct that will result in disciplinary action, up to and including termination.  In listing examples of unacceptable conduct, e.g. theft, false reporting of time worked, threats of violence, make it clear that it is not an exclusive or complete list.  While the policy should retain the right to use warnings or progressive discipline at the discretion of the employee, it also should state that an employee may be subject to immediate termination for inappropriate conduct or violations of workplace policies.   

Benefits

Outline policies and eligibility regarding vacations, 401(k), health insurance, paid leave or other benefits to employees. 

Include Handbook Acknowledgment Form

A common claim by plaintiffs in employment litigation is that they were unaware of the workplace policy that they violated, or that they had never seen or been given a copy of the employee handbook. Every handbook should include an acknowledgment form to be signed by the employee, attesting that they have received a copy of the handbook, acknowledging their responsibility to read and comply with the policies contained in the handbook, including any future revisions, and acknowledging their at-will employment status. This can be done using a hard copy form to be put in the employee’s personnel file, or in the case of a handbook that is on-line or on the company’s intranet, it can be a digital form which the employee electronically signs.  A signed copy of an acknowledgment form can be a valuable exhibit when a plaintiff claims in a deposition that he was never given a handbook or had no knowledge of the policy which he violated and which resulted in his or her termination.

Train Your Managers / Inconsistent Enforcement Can Result in Discrimination Claims

Don’t assume that your managers and supervisors will always act in accordance with the policies in your handbook.  Make sure they receive regular training on handbook policies so that they are implemented correctly and effectively.  Once trained, management and supervisors should periodically review handbook policies to assess whether they are being applied consistently.  Inconsistent enforcement of policies could result in claims of discrimination.

Your rating: None Average: 5 (1 vote)

Reply

CAPTCHA
This question is for testing whether you are a human visitor and to prevent automated spam submissions.