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Davis Brown Employment and Labor Law Blog



Is Your Employee Handbook a Liability Shield or a Welcome Mat? Don't Let the NLRB Be the Center of Attention - April 21, 2015

Employers, attorneys, and human resource managers are bewildered at the National Labor Relations Board’s (“NLRB”) recent memo issued March 18, 2015.  For better or worse (and most employers would say worse), the NLRB’s far-reaching views regarding what language is and is not acceptable when regulating employee conduct has prompted employers across the nation to review and revise their employee handbooks.  Instead of putting the entire spotlight on the NLRB, here are five employee handbook essentials.  Use this as an opportunity to refresh your memory on the basics, so that in the rare chance you are served with a lawsuit, you can utilize your employee handbook for one of its best qualities: to protect yourself from liability (cue the “defense” chant).

 

1.     Use Simple, Straightforward Language.  Your employee handbook communicates to your employees your expectations of them and the policies, procedures, and programs that are available as a result of their employment.  What good is your handbook if it is written in language that your employees can’t understand?  It may serve you legally, but it is best to optimize both the legal and practical uses of your handbook.  You should aim to do both at the same time.

 

2.      Include a Disclaimer.  Your employee handbook is not a contract.  Do your employees know this?  Courts have ruled in favor of employees that claimed their employers breached an implied contract arising from the employee handbook. How can you avoid this?  Make sure your handbook has a prominently placed disclaimer (typically in bold font on the first page of the handbook with clear an explicit language) stating that the handbook does not create a contract of employment and all employees of your company are at-will employees.  This will help prevent a fired employee from prevailing on a breach of contract claim as a result of your handbook.

 

3.      Avoid Contract-like Language.  Because your employee handbook is not a contract, use generalized language so that you can respond to situations at your discretion.  Employers have gotten themselves into trouble when they provide a definitive list of steps they will follow when an employee commits a work place grievance. It’s okay to provide guidance describing how you will handle workplace issues, but include a buffer phrase like “unless a supervisor determines otherwise,” “subject to management discretion,” or “a violation of this policy may lead to discipline up to and including termination of employment.”  This way you can manage your employee’s expectations while having wiggle room to decide how to resolve each situation on a case-by-case basis.

 

4.      Regularly Review and Update.  Employment laws constantly change and your handbook should too.  Otherwise, your handbook may be doing more harm than good.  For example, now that marijuana has been legalized in certain states and in certain contexts, your drug policy may need to be revised.  Recently, Delaware and Illinois have implemented pregnancy accommodation laws requiring reasonable accommodations for employees who are limited by pregnancy, childbirth, lactation, or related conditions.  Further, Young v. UPS has persuaded employers and employment attorneys to review policies and procedures vis-à-vis pregnant workers.  Register for the Davis Brown webinar on April 29, 2015 at 9:00 A.M. with senior shareholder, Jo Ellen Whitney, and I for a more detailed discussion on these and other recent changes.

 

5.     Give the Handbook To Your Employees.  Sounds obvious right?  Employers have found themselves not able to utilize their employee handbook as a factor in their defense because not all of their employees and/or managers received a copy. Further, this common sense tip becomes more complicated when you think about how it will apply to revisions to your handbook.  How will your employees be notified of changes to your policies? (handouts, emails?) To protect yourself, have your employees sign an acknowledgement form when you provide them with a copy of their handbook stating that: (1) they received the handbook; (2) they have had time (or will have time) to read and review it; (3) they understand they are responsible for familiarizing themselves with the contents of the handbook and any future revisions; and (4) they understand they can access the handbook and future revisions and can ask questions for further clarity at anytime. 

 

It’s easy to get caught up in the chaos surrounding the NLRB’s memo and the subsequent awaiting legal minefields.  Yes, the NLRB’s recent memo is important.  Yes, there are other sections of your handbook where employers may encounter legal issues if not phrased to comply with state or national laws.  But too often, employers overlook the simple ways to protect themselves from “unforeseen” liability.   Don’t let yourself be one of them - take the time to review your employee handbook and the five basic steps above so that you will protect yourself from the pitfalls easily exploited by the NLRB, disgruntled employees, or any other employment agency.