Employee handbooks come in all shapes and sizes. However, there are certain policies that should be included in every handbook—often; these are either required by law or protect an employer from legal liability. In addition, there are policies that are included in almost every handbook because the policy is universally important to both employees and employers. Finally, there are those policies that are tailored to the organization and focus on a message for employees. Different organizations have different communication needs.
Selecting Topics for the Employee Handbook
When selecting topics for the employee handbook, there are certain factors to keep in mind. These include the ease with which a policy can be explained and understood, the frequency with which the policy might change, the number of employees affected by the policy, and the importance of each policy.
Ease of explanation or understanding. Some items may be so complex that they can’t be thoroughly explained in the employee handbook. This is especially true of topics such as group health insurance and other benefit plans where a thorough treatment would have to include eligibility requirements and details of coverage.
In addition, employers are already required to provide employees with a separate summary plan description (SPD), which is a comprehensive document describing the features of the benefit plan. Therefore, it is usually preferable to limit benefit and health coverage information in an employee handbook to a brief listing of available benefits while referring employees to the SPD, group health plan, or other appropriate documents for details. Other complex topics may be similarly managed by summarizing the basics in the employee handbook, then cross-referencing other documents and resources for in-depth details.
Inclusive language. Employers wishing to build and welcome diverse workforces may considering inclusive language such as “they/them” as an alternative to binary gender pronouns such as “he” and “she.”
Frequency of change. If the information that will be covered by a policy changes on a regular basis, it might be a better strategy to provide a general description and avoid details.
For instance, an employee handbook might include a policy on holidays indicating how many paid holidays employees will receive each year. However, because the actual days may vary from year to year, the company may not want to list them in the employee handbook.
Number of employees affected. There are some policies that will apply only to a small group of employees, such as those related to executive perquisites or sales commission plans.
As a rule, the employee handbook should include policies that are applicable to most employees. Information on items that affect only a few employees can be distributed separately. Furthermore, if you aren’t going to enforce a policy, think deeply about not including it. It can possibly make your whole handbook unenforceable.
Importance. An employee handbook may be relatively short and cover only key topics. On the other hand, some organizations have comprehensive employee handbooks that are very long.
Having a lengthy and comprehensive handbook is not necessarily a bad thing if the handbook is well organized and easy-to-understand and navigate. However, if the handbook is too long or difficult to use, its purpose has been lost, and the effort put into creating it has been wasted. Whatever form of handbook chosen, employers should be sure to prioritize your handbook so that the most important policies are included and given proper coverage. It’s important to have a licensed employment law attorney guide you through this process and ensure you have a legally compliant handbook for all staff to follow.
At-Will Employment, the Contract Disclaimer, and the Acknowledgment Form
In nearly all states, private employees are employed at will. This means that either the employee or the employer may terminate the employment relationship at any time, for any reason, with or without notice.
Exceptions to employment at-will include employees covered by a collective bargaining agreement (union contract), public employees, and employees with an individual contract of employment that includes a specific term. Unless one of these exceptions applies, employers should take steps to preserve the at-will nature of the employment relationship.
Accordingly, at the beginning of every employee handbook, there should be a statement including the following:
- Employment is at will and may be terminated at any time by either the employee or the employer.
- Nothing in the employee handbook creates or is intended to create a contract of employment.
- The at-will nature of employment may not be modified by any oral or written statement made either before or during employment.
- Policies in the handbook provide information and guidance to employees, however, the organization reserves the right to amend or change the policies at its discretion with or without notice to employees.
Revising a handbook to add a disclaimer. The law related to contract disclaimers and employee handbooks has developed at the state level. Organizations with older employee handbooks may need to revise their handbooks to include language related to at-will employment and to add a contract disclaimer and acknowledgment form.
Because old handbook provisions may be viewed by a court as having created a contract with employees, it is a good idea to seek the advice of experienced employment counsel about the best way to implement these changes.
Acknowledgment form. In addition to the statement at the beginning of the employee handbook, we recommend that the last page of the employee handbook includes an acknowledgment. At the time an employee receives a copy of the employee handbook, they may be required to sign and date an acknowledgment stating that a copy of the employee handbook was received.
In addition, an even better practice is to have the employee agree that they have not merely received the handbook, but also read the handbook, understood the policies within, and had the opportunity to ask questions. The acknowledgment needs to also state that the employee understands that their employment is at will, that they agree nothing in the employee handbook creates, or is intended to create, a contract of employment, and that the organization may amend or change the policies at its discretion with or without notice to the employee. This signed acknowledgment needs to then be placed in the employee’s personnel file.
Additional disclaimers:
In addition to including the disclaimer at the beginning of the handbook, employers may want to consider adding disclaimer language to policies related to discipline and/or workplace rules. For instance, if an employer has a policy related to disciplinary procedures, it is a good idea to include a statement reserving the employer’s right to determine what level of discipline is appropriate in any given circumstance, up to and including the immediate termination of employment. Employers may not with to include detailed progressive discipline language because such language could limit the organization’s right to discipline employees as appropriate.
Likewise, if there is a policy listing conduct that will not be permitted in the workplace, it needs to include a statement indicating that the list is not all-inclusive, however, it is provided as guidance about the types of behaviors that will result in discipline, up to and including the immediate termination of employment.
Caution: National Labor Relations Board (NLRB) standards. In the past, the NLRB has taken action against employers it deems to have included overly broad disclaimers in employee handbooks. For example, in one case, an administrative law judge (ALJ) ruled that an employer engaged in an unfair labor practice when it included the following language in its employee handbook as part of the at-will employment disclaimer: “I further agree that the at-will relationship cannot be amended, modified, or altered in any way.”
According to the ALJ, the problem with this disclaimer was that it could have been interpreted by employees to mean that organizational activities would be futile and that workers could not alter their at-will status through unionization. Therefore, the disclaimer was found to violate employees’ Section 7 rights to engage in concerted activities and join a union. (NLRB v. American Red Cross, Case 28-A-23443).
In 2023, the NLRB adopted a new legal standard to decide whether an employer’s work rule is facially unlawful even when it does not expressly restrict employees’ protected concerted activity (Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023)). Under the new standard, the NLRB will first assess whether the General Counsel has established that a challenged work rule has a reasonable tendency to interfere with, restrain, or coerce employees from engaging in protected activity. This is done from the perspective of a reasonable employee who is economically dependent on the employer. If the General Counsel demonstrates that the rule is presumptively unlawful, the employer can rebut the presumption that a rule is unlawful by proving that it advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule.
Specific Policies to Include in the Employee Handbook
In addition to statements regarding at-will employment, the following policies are included in most employee handbooks:
- Equal employment opportunity statement, including information on the Americans with Disabilities Act (ADA) and reasonable accommodations.
- Accommodations related to pregnancy and lactation under the Pregnant Workers Fairness Act and the PUMP Act.
- FMLA policy (if the employer has 50 or more employees, is a private employer, or is covered by an applicable state law).
- Family military leave policy (as required under the amended FMLA).
- Military leave policy.
- Policy regarding other leaves such as vacation, personal days, jury duty, school activities, safe and sick time, domestic violence, voting, bereavement, etc.
- Policy against harassment, discrimination, and retaliation that includes sexual harassment and a complaint procedure meeting the requirements of both federal and state law.
- COBRA policy that provides employees with the notice of rights required upon commencement of employment and separation of employment.
- Internet, email, social media, and/or other technology policy limiting any employee expectation of privacy.
- Policy on electronic monitoring, if applicable.
- Smoking policy.
- Lactation policy.
- Solicitation policy.
- Policy explaining part-time versus full-time employment and exempt versus nonexempt or other employee classifications.
- Rules for timekeeping for nonexempt employees.
- Designation of regular paydays and when time must be submitted. Including when the organization’s week starts and stops (include Day of the week and Time)
- Hours of work.
- Lunch and rest periods.
- Policy on overtime under the Fair Labor Standards Act plus any differing state or local overtime rules, including any mandatory approval process.
- Absences and tardiness, including procedure for calling in to report absences and any rules related to job abandonment.
- A non-inclusive list of workplace conduct that is not acceptable and will result in discipline (which may include termination of employment), including threatening conduct or violence; theft; possession or use of illegal drugs in the workplace; inappropriate use of the internet, e-mail, voicemail, or other forms of electronic communication; harassment; inappropriate dress; etc. Include in your wording that this is a non-inclusive list.
- A description of the disciplinary process and statement that the employer will decide what level of discipline, up to and including the immediate termination of employment, is appropriate in any given circumstance.
- Policy on drug and alcohol testing, if applicable.
- Policy on the use of artificial intelligence (AI).
- General policy on remote work.
- General description of employee benefits such as health, dental, life, and disability insurance.
- General description of any 401(k)/403(b) or other retirement plan.
- Notification of employees’ right to report any workplace injury or illness, as required by the Occupational Safety and Health Act.
- Additional information on safety and workers’ compensation.
- Policies on education or tuition reimbursement.
- Code of ethics.
- Policy on competition, confidentiality, intellectual property, references, background checks, etc.
- Pay policies, such as paychecks, direct deposit, salary advances, salary continuation, expense reimbursement, etc.
Other policies may be included to suit the organization’s needs. As noted earlier, many organizations use the employee handbook to give employees information about the organization’s history, mission, services, and clients. This is often done through a letter from the organization’s president or chief executive officer.
The employee handbook may also include policies encouraging volunteer work (be cautious) or explaining an open-door policy. In addition, organizations might want to include a statement regarding confidential information and media relations.
Employers may consider a wide range of other policies depending on the needs of the individual organization. Those may include policies related to an orientation period, employee service credit, temporary telecommuting, performance appraisals, job postings, employee referrals, and employee relationships. This too is a non-inclusive list.
Union and NLRA Concerns
As noted above, employers must be careful not to include language in their handbooks that in any way infringes on or discourages an employee’s right to organize.
Section 7 of the NLRA, which applies to most private workplaces (even those that are not unionized), provides employees with the right to engage in “concerted activities” to advance their interests as employees. These activities might include discussing pay, workplace conditions, and discipline with others.
Under the 2023 Stericycle standard, the NLRB may scrutinize policies related to workplace conduct, social media, conflicts of interest, confidential company information, the use of camera phones, and email. Employers should consider policies from the “the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.”
- Be specific. Employers should be specific as to the type of activity they wish to restrict. Vague policies that prohibit “negative attitudes” or “discussing sensitive information on social media” are less likely to pass muster than policies that specifically state that employees should not harass colleagues or disclose client’s data to nonorganizational personnel. The NLRB takes the position that it is generally unlawful to require employees to be respectful or professional as employees are permitted to engage in vociferous discussions with management regarding working conditions.
- Use disclaimers. When in doubt, remember the power of the disclaimer. An NLRA disclaimer can help clarify an otherwise vague policy by specifically alerting employees that “nothing contained in this policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms or conditions of employment. Organization’s employees have the right to engage in and refrain from such activities.”
Practice tip: Employers, whether unionized or not, should ensure that their employee handbook does not conflict with employees’ rights under the NLRA. Even if such policies are not enforced, the NLRB may still find the employer engaged in an unfair labor practice just by maintaining such policies. As noted above, an attorney experienced in labor law should review employee handbooks for compliance with the NLRA, and other federal, state, and local laws and regulations.
If you have any questions regarding this topic or other HR questions or concerns, please contact us at HRServices@501c.com or (800) 358-2163.
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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.
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