HR 101 in 2022: Periodically Reviewing Employee Handbooks to Avoid Traps
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Drafting or reviewing employee handbooks often becomes a back-burner project. Even businesses that take the time to create a really good one often treat them as “out-of-sight, out-of-mind.” Copies (or links) may be handed out at orientation, but management typically doesn’t give much thought to handbook contents on a day-to-day basis. That is, until it gets implicated in a legal claim.
A well-tailored and up-to-date employee handbook can be one of the most useful operational and employee relations documents imaginable (not to mention a helpful legal exhibit). Outdated ones and/or versions that don’t jive with applicable laws and regulations can be worse than having no handbook at all. “Bad” or even just “sub-optimal” handbooks leave supervisors without a valuable performance management tool and can undermine a company’s ability to defend against a variety of legal claims. All businesses should review and update these critical documents periodically, seeking professional HR and/or legal advice (a good rule of thumb is to have an experienced lawyer review every few years with internal/non-lawyer HR refreshers in between).
The employment relationship is governed by numerous federal and state (and sometimes local) laws. Some are “common sense;” many are not. Even for employers whose workforce is exclusively in Indiana, there is no such thing as a “universal” handbook. Not a good one, anyway. Copying another company’s handbook often is a great way to save time but usually results in a terrible tool. Even the highest quality templates from trade organizations or HR consultants (and there are many good ones out there) should be thoughtfully reviewed and tweaked to best manage the unique risks faced by a given employer.
I can’t capture all the issues or traps in one article. But through my experience as an employment defense lawyer, I’ve noticed several handbook mistakes that tend to surface a lot. Here’s some of the more common and significant policy-drafting missteps I tend to see:
An EEO Policy That’s Too Narrow (or Too Broad): Being “equal opportunity” means prohibiting unlawful discrimination, and also making reasonable accommodations. That includes accommodating both legal disabilities and religious beliefs. Handbooks often explain how to request medical accommodation; many forget to mention religious requests. Similarly, many policies will state generally that employees should report potential harassment but fall short in explaining how to report effectively. For instance, telling employees they should report prohibited conduct to the “payroll/HR” person who works 7:30-3:30 Monday through Friday isn’t a great fit for a company that runs three shifts 24/7. Telling employees to report solely to “their manager” does no good if the manager is the alleged harasser. Good policies spell out multiple ways for all employees to report so that a trained member of management will be able to respond meaningfully and quickly.
On the “overinclusive” front, the law basically prohibits employers from doing bad things to employees because the employee falls in a particular, legally-defined protected group. The law does not prohibit – and policies should not state as a prohibition – conduct that someone might put under the broad and vague umbrellas of “unfair,” “disrespectful” or “bullying.” Such words have little or no utility in workplace policies and can actually increase risk by creating unrealistic expectations.
Over-Restrictive Confidentiality Rules: The National Labor Relations Act (NLRA) gives practically every non-supervisory private employee in the U.S. – even those at “non-union” employers –a broad right to discuss and disclose their terms and conditions of employment in the course of “protected concerted” activities. Translation: your non-management employees often are protected by law when they “gossip” amongst themselves about work-related subjects that many would mistake as “off limits,” such as their own or their coworkers’ compensation, discipline, etc. This applies to both on- and off-the-job “conversations” (think social media!). Handbook language that expressly or reasonably could restrict employee communications, postings, and/or information distribution should always be drafted with NLRA rules in mind.
Poor-Fitting Drug/Alcohol Policies: Drug/alcohol policies should convey general philosophies about keeping problematic substances out of the workplace. They also should be detailed enough to put employees on notice as to when they will be tested and what they will be tested for. Most policies should explain “reasonable cause,” and nearly every private employer should reference unannounced or random tests. Those who wish to conduct post-accident tests should consider OSHA’s guidance, which limits “automatic” post-accident testing. As for “what” gets tested, marijuana – and specifically CBD oil – often warrant specific discussion, which can vary based on workforce demographics and management philosophy. Well-drafted policies also include detailed language explaining how employees will be escorted and transported to/from testing sites, and what disciplinary consequences attach for those who fail to cooperate.
Joe Pettygrove is an employment law attorney and partner at Kroger, Gardis & Regas, LLP, based in Indianapolis. His opinions are for general information only and are not legal advice.