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Article
Spelling it all out
A Practical Approach to Employee Policies
In my practice, I am often asked, "should my business have a written employment manual?" The answer? Absolutely. A well-written, comprehensive personnel policy manual that effectively presents and defines employer policies and employment practices minimizes the risk of misunderstanding and litigation. An effective manual ensures consistent application of employer policies, practices, and procedures and frequently helps to create a "team" atmosphere. It can also discourage employment-related lawsuits and reinforce the at-will employment relationship. A well-crafted handbook can be used as evidence supporting your legitimate defenses to an employment-related lawsuit.
There are few "hard and fast" rules to follow when drafting employment policies, but employers must remember that their employment policies may be subject to review by a jury and the courts. Three items are essential to implementing an effective policy manual:
- It must be clearly written and unambiguous;
- It must be effectively communicated to each employee; and
- It must be consistently applied to each employee.
Additionally, employers should keep in mind that:
- A written manual does no good if the employer does not follow its own policies;
- A manual that confuses, rather than clarifies, employment policies can have a devastating effect in litigation.
In general, personnel policy manuals should be prepared with four objectives in
mind:
- To provide employees with necessary information about the employer, employment benefits, work and attendance rules, and disciplinary policies;
- To express policies in non-contractual terms that protect the employer's flexibility and right to define employment provisions without using language that could be construed as an employment contract;
- To evaluate and ensure that policies and practices do not violate employment discrimination laws or disproportionately affect employees or applicants in protected groups; and
- To convey to employees that a handbook cannot answer all questions which may arise and that residual discretion to make decisions which affect the employment relationship is reserved by the employer.
Policies That Should Be In All Personnel Manuals Statement of At-Will Employment. Texas is generally considered an "at-will" employment state. This means that, except as otherwise provided by law and absent any express contractual provisions to the contrary, employers and employees are free to end the employment relationship at any time for any reason. Every at-will Texas employer should include a statement in its policy manual in which both parties acknowledge the employment relationship between them is on an at-will basis: terminable by either party at any time for any reason or no reason. The at-will employment statement should specifically state that no provision of the employee manual is intended to create a contract of employment and should also include language stating that no agreement or promise regarding an individual's employment is binding on the employer unless it is in writing and signed by a designated employer official. This statement should also specify that language of the manual is binding and confirm that the policy language overrides any verbal statement of any agent of the employer. Finally, the at-will statement should also clearly specify that the employer has the right to change the policies or alter their application in a particular circumstance at any time without notice. In order to eliminate any doubt about the status of employees, these statements should be displayed at or near the beginning of the policy manual.
Equal Employment Opportunity Statement. Every Texas employer with 15 or more employees must adopt a policy against discrimination to be in compliance with federal and state laws. This policy should be prominently located near the beginning of the policy manual, and should reflect the employer's commitment against discrimination on the basis of race, color, religion, sex, national origin, age, veteran's status, disability, or any other unlawful basis. Many employers also include a statement that employees who engage in unlawful discrimination will be subject to discipline.
Anti-Harassment. In addition to a generic equal employment opportunity policy, employers should also adopt and publish a separate policy relating specifically to sexual and other forms of harassment, such as harassment based on race, religion, national origin, etc. Federal and state laws on sexual harassment require employers to investigate claims of harassment in the workplace and take prompt remedial action. An anti-harassment policy should include a definition of sexual harassment and provide specific, but non-limiting examples of conduct which would constitute sexual harassment. It should also include a complaint procedure which allows an employee to circumvent a supervisor who may be the perpetrator or alleged perpetrator of sexual or other harassment.
Family Medical Leave. Employers who are covered by the FMLA should include an FMLA policy in their employee manuals that discusses eligibility for leave, authorized reasons for leave, types of leave available, procedures for requesting leave, medical certifications, benefits continuation, sick leave and vacation accrual, combining leave, and returning to work.
E-Mail. For companies with E-mail systems, it is imperative that an e-mail policy be put in the manual that states e-mail is for business use only; employees do not have a personal privacy or property right in any matter created, received or sent using the company's computer system; employees are prohibited from disseminating confidential company information without authorization; and employees may not access or distribute intimidating, hostile or offensive material, including materials relating to sex, race, color, religion, national origin, disability, or sexual orientation. The policy should include a reservation of the employer's right to monitor the system to access, retrieve, read and delete information.
Drug and Alcohol Abuse. Many employers have adopted policies aimed at eliminating the use of drugs and/or alcohol on the job, or off the job if it affects on-the-job performance. Under the Texas Workers' Compensation Act, each employer that maintains workers' compensation insurance and has 15 or more employees must adopt a policy designed to eliminate drug abuse and its effects in the workplace.
Acknowledgment of Receipt Forms. The employer should require every employee to sign an acknowledgment form to verify receipt of the manual. This document should include another at-will employment statement and employment contract disclaimer. The signed verification should be retained by the employer as proof that the employee received the manual. When the handbook is revised, the employee should sign a form acknowledging receipt of the revisions.
Other Policies Employers Should Consider
Progressive Discipline, Grievance, Performance and Promotion, Leave, Vacation, Holidays, Searches, No Solicitation/No Distribution, Non-Union Workplace, Use of Bulletin Boards, Political Activity, Fair Labor Standards Act.
Conclusion
Employee manuals should not try to address every type of issue that arises in the workplace. The employee manual should be designed as a reference tool which describes "ground rules" of the employment relationship keeping in mind that employer policies are subject to change with every new State and Federal court ruling or Legislative Session.
Scott Lemond is a Labor, Employment, and Employee Benefits attorney in the Houston office of Haynes and Boone
L.L.P. Haynes and Boone is a full service law firm with more than 425 attorneys in nine offices, including Austin, Austin Loop 360, Dallas, Fort Worth, Houston, Mexico City, Richardson Telecom Corridor, San Antonio, and Washington, D.C. Mr. Lemond may be contacted at [713] 547.2039 or
[email protected].
To find out more information about Mr. Lemond or Haynes and Boone visit
www.haynesboone.com.
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