By: John W. Holt
Winder & Counsel, P.C.
Salt Lake City, UT
Over the years, employee handbooks have become commonplace. There are many practical and legal reasons for an employer to have an employee handbook. A properly written, up-to-date employee handbook can improve employee relations and moral by communicating the company’s philosophy, expectations, policies and employee benefits. A well-drafted handbook can also protect the employer by containing appropriate disclaimers – such as employment-at-will – and establishing flexibility. The adoption of an appropriate handbook can help discourage disgruntled employees from filing lawsuits and can expedite government investigations into claims of discrimination or other allegations labor law violations.
On the other hand, a poorly drafted employee handbook, or one that has not kept up with the changing times, can become a gold mine for those looking for evidence to support claims against an employer. Often, small businesses in particular will attempt to prepare their own handbooks or will try to cut and paste from handbooks they find from other sources, such as the Internet or competing businesses. This approach is fraught with danger and potentially exposes an employer to unnecessary risks. Additionally, due to ignorance about how federal and state employment laws apply, an employer may make the mistake of implementing policies the law does not require of the employer.
Once a handbook is adopted, an employer should not assume it will be monolithic and require no maintenance or review. For businesses who have had handbooks for many years, there have been changes in the law, technology and culture that require the review, and probable modification, of the handbook. For example, an old handbook is not likely to contain policies concerning an employee’s use of the Internet or e-mail. Through improper use of a personal computer at work, an employee can expose the employer to computer viruses and claims of sexual harassment due to pornography that is easily accessible online. Employers who download copyrighted materials on work computers or engage in file-swapping of copyrighted materials can expose employers to liability. Additionally, over the past few years, cell phones have become ubiquitous. Cell phone use on the job can impact an employer, yet older handbooks may not address issues raised by cell phones. Military leave has become a bigger employment issue since the war in Iraq began, yet many employers and employees may not be familiar with their rights and obligations. Finally, many employee handbooks may have been written before body art, tongue studs, facial jewelry and other extreme fashions became popular. Depending upon the situation, a handbook should have clear policies about personal appearance and address current fashion trends.
There have also been changes in the regulatory environment, including the fairly recent modification to the Fair Labor Standards Act. An employer should assure that there is nothing in its handbook that conflicts with federal and state employment statutes and regulations. Additionally, courts may decide lawsuits that impact the employee-employer relationship and require handbook revisions. In short, a handbook should keep up with changes in the law.
To reiterate, an employee handbook can be very beneficial to both the employee and the employer. There is minimal legal risk to having a handbook, as long as it is properly drafted and kept current. Potential risks associated with a handbook can be alleviated by having an experienced professional help with the drafting of a handbook in the first place, and keeping it current as the law and other circumstances change.
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