Employee handbooks have unfortunately, but fairly, gained a reputation for legalese and including unnecessary details, which makes it harder to understand and causes confusion. (Image: Shutterstock)In a recent survey of the HR industry, nearly one-third of the respondents said maintaining an up-to-date employee handbook is an ongoing challenge. This comes as no surprise. Staying on top of the constantly evolving litany of national, state and local legislation can be a huge lift for even the largest corporate HR teams. All of this is compounded by the high stakes involved, since a poorly written and maintained handbook can lead to litigation and have serious repercussions on your organization’s reputation.
To help stay ahead of potential issues, below are five common handbook-related mistakes employers make and how to mitigate them.
Mistake #1: Not properly obtaining and maintaining employee acknowledgments.
Mitigation: Require employees to provide a written or electronic signature acknowledging receipt of the handbook and its updates.
The receipt of an employee handbook is a “day one” staple, a tangible indication that you’re playing for a new team now. Some employees devour every word as if they were expecting to be quizzed on it, but most force themselves through the content as if it were an instructional manual. Regardless, you should require every employee to sign a document acknowledging that they received, read and understand the handbook.
For one, the signed acknowledgment sends an unmistakable signal to the employee that the handbook’s contents are a serious matter. Second, a written acknowledgment will come in handy should an employee facing a violation later claims to be unaware of the policy or the consequences for having violated it.
Since employee handbooks are by their very nature fluid, whether due to the constantly changing legal landscape or changes in corporate procedures, you should require all employees to review any additions or amendments to the handbook and provide a written or electronic signature acknowledging that they have done so. The signed acknowledgments should be retained in the employee’s file for easy retrieval.
Mistake #2: Accidentally creating an employment contract.
Mitigation: Include a clear and prominent at-will disclaimer in the handbook and on the acknowledgment form.
In nearly all states (with the exception of Montana), employment relationships are presumed to be at-will, meaning that an employer may terminate employment or that the employee may resign the position at any time. In order to avoid creating an implied employment contract—and, in turn jeopardizing the at-will employment relationship—the employment handbook should include an at-will statement disclaiming any contractual relationship.
The statement should further clarify that the handbook does not form a contract. This should be accomplished by including plain and clear language on the acknowledgment form and in the handbook. The language should avoid legalese and be prominently displayed, perhaps in a different color, font or weight to attract attention, and should be placed in the beginning of the handbook.
Mistake #3: Including too much legalese and detail.
Mitigation: Clearly and succinctly articulate workplace expectations.
Employee handbooks have unfortunately, but fairly, gained a reputation for legalese and including unnecessary details, which makes it harder to understand and causes confusion. It’s time to give the employee handbook a clarity makeover. A well-crafted handbook should be concise and avoid ambiguity. There just needs to be enough detail and information for an employee to understand workplace rules and expectations, while allowing an employer to retain discretion on how to address inappropriate behavior.
Avoiding unnecessary details from the outset can help reduce the frequency in which the policies may need to be updated. And it can help keep your company out of hot water. For instance, going into excessive detail on how violations are handled in individual, particularized situations is unnecessary—and could paint your legal team into a corner should your company face litigation.
State simple matters in digestible, easy-to-understand language. Avoid over-complicated language such as: “Following the completion of the official seven-day period of operations during which wages are duly earned, such fully accrued wages will henceforth be dispensed on the third day of the following week. In the event that the third day of the following week is a holiday, all duly earned and fully accrued wages will be tendered the calendar day prior.”
Instead, you could state: “Our pay period runs weekly, Monday through Sunday. Payday is the following Wednesday. Should that day fall on a company-recognized holiday, you will be paid the workday before.” Of course, ensure that the statements, even simple ones, do not run afoul of any relevant laws.
Mistake #4: Failing to update handbooks based on employment law changes.
Mitigation: Proactively track federal, state and local legislative developments.
Federal, state and local employment laws emerge and change frequently, many of which directly impact how employers must interact with employees. Trying to ensure that your policies reflect current laws and trends can place a heavy burden on your HR team, but failure to comply can lead to even bigger headaches for your team and company. Further, a number of these laws contain notice provisions that are mandatory, with time-sensitive distribution specifications.
Don’t rely solely on internet searches to keep you up to date on legislative developments; you may miss critical information and your handbook will be out of compliance, opening the door to legal claims. Fortunately, there are some reliable online tools that can help to stay on top of federal, state and local changes with minimal effort, saving both time and dollars.
Mistake #5: Not consistently applying and enforcing the policies in the handbook.
Mitigation: Uniformly applying and enforcing policies to all employees.
While it’s important to ensure that employees understand the policies within a company’s handbook, it’s equally important for employers to follow and uniformly enforce the policies set forth within them. Consistently enforcing workplace policies across your entire organization is critical to avoiding claims of discrimination or unequal treatment. Further, lax or inconsistent enforcement of the handbook’s policies will give the impression that the rules and procedures that lie within the policies are meaningless and will lose credibility.
Ensuring that the policies are consistently applied requires that all managers and supervisors be regularly trained on exactly what’s in the handbook and the risks involved whenever its contents seemingly apply to some, but not to others. These trainings also provide an opportunity to review work rules and performance standards.
By avoiding these pitfalls, HR professionals can reduce the chances of their own handbooks turning on them and their company.
Melissa A. Silver, JD, is legal editor at XpertHR and a former practicing employment law attorney with 10 years of experience. As a member of XpertHR’s editorial team, she covers a variety of leave-related topics, such as FMLA, USERRA and paid sick leave, as well as disabilities and accommodation, and multistate employer issues. In addition, Melissa is a frequent presenter of XpertHR webinars on employee leaves. Melissa holds a Juris Doctor degree from Syracuse University College of Law. Before joining XpertHR, she defended clients in a variety of employment-related matters involving harassment, discrimination and retaliation claims, as well as the enforcement of restrictive covenants.
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