Jon Yarbrough's
"Employment
Law Corner"
courtesy of the
Asheville Citizen-Times
The
Employment Law Corner is the property
of the Asheville
Citizen-Times to whom we extend our thanks for allowing us to
republish the article.
March 27,
2006:
"Employers:
An Employee Handbook is Your 1st Line of Defense"
New employees review
and sign employee handbook statements. Usually, they also sign
individual policies that place extra emphasis on harassment and
workers' compensation procedures. Are you missing anything?
Employers may want to adopt
policies regarding pre-employment background checks at the
post-application/pre-hire stage. Employers may also want to create
cell phone usage policies especially since so many cell phones
contain cameras and other recording devices. Finally, with $85
billion in productivity lost every year to Internet surfing and
e-mailing, you may want an Internet and e-mail usage policy.
Want some good reasons not to update your
handbook? Try these:
You enjoy defending a breach of contract
claim.
Employment is normally terminable at will,
meaning an employee may quit anytime and, likewise, an employer
may terminate the relationship at any time. At-will status,
however, can be modified with the creation of an employment
contract. Poorly drafted handbooks can create unintended
contracts. To avoid this problem, be sure your handbook contains a
clear and conspicuous disclaimer stating that the handbook "is not
intended to create a contract of employment between the company
and any of its employees or otherwise alter or modify employees'
at-will status."
ou give employees the chance to plead
ignorance.
Regardless of whether your policies are clear
and distributed to all employees, failure to obtain signatures
acknowledging receipt of handbooks allows employees to later claim
they never received copies. A written acknowledgment leaves no
room for the "ignorance" plea.
You prefer to litigate your FMLA disputes.
If your company is governed by the Family and
Medical Leave Act, your handbook should address your company's
requirements that vacation and sick time be exhausted before
unpaid leave is taken, that employees must provide at least 30
days' advance notice of their need for leave if the leave is
foreseeable, that employees must produce certification of their
medical condition from a health care provider and that FMLA
absences will be calculated using a "rolling calendar" method. If
you don't cover these issues in the handbook, you best be prepared
to discuss them in court.
You don't care if employees spend all day
surfing the Internet.
Employers recognize the need to monitor
employees' use of computers, Internet and e-mail. Most electronic
monitoring is permitted if you obtain employees' consent. Consent
may be implied if the handbook contains a clear provision
notifying the employees that you may monitor their communications.
I once had an employee argue that since the employer did not have
a written policy prohibiting him from viewing what could be best
characterized as soft porn while working, that he should not be
disciplined. It is better to have a policy so such silly arguments
cannot be made.
A related issue is access to employees'
personnel files. There's no federal or state law giving employees
the right to inspect their own personnel files, but you may want
to include in your handbook any policies that govern access to
personnel files, such as who has access, under what circumstances,
whether specific times are permitted for inspection, and whether
such review will be under the supervision of your records
custodian.
You don't care if they say you discriminate.
Regardless of effective policies, trained
managers and vigilant monitoring, most employers eventually face a
charge of discrimination. An equal employment opportunity
statement is now considered essential in personnel handbooks. The
presence of an EEO statement impresses upon management and
employees your position on the issue. Conversely, the absence of
an EEO statement in a personnel handbook may give the faulty
impression that you aren't concerned about discrimination in the
workplace.
Here's the point: the first line of employer
defense is the handbook. Given the frequent changes in laws
affecting employers, it is important to review and audit your
policies and procedures so you too can maintain the effectiveness
of your first line of defense.
Jonathan W. Yarbrough is a member of the law
firm of Constangy, Brooks & Smith LLC, which is dedicated to
representing management exclusively in all aspects of the
employment relationship. Contact Yarbrough at 277-5137 or
jyarbrough@constangy.com
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