By Margie Faulk, PHR, SHRM-CP
In my 15 years of human resources, I have come in contact with many small and large Employers and received feedback on what should or should not be included in an employee handbook from employment law professionals, HR professionals and other workplace compliance resources. As a result, I have created 8 tips that should guide Employers and HR professionals on the need to update or create an employee handbook.
- You don’t have an employee Handbook- Although not a legal requirement; there are more benefits in having an employee handbook that not having one. There are laws and regulations that require business owners to communicate their policies and procedures to employees. Having an employee handbook will meet that requirement. It is important to note, having an employee handbook that is not followed is worse than not having one.
- You have an employee handbook and have not updated it annually-If you have not updated your handbook, you may be at risk for having outdated policies and procedures. The federal and state regulations have changed significantly since 2015. In fact, there were 25 changes in regulations from Department of Labor (DOL), Family Medical Leave Act (FMLA), and Military Leave Act (MLA). Federal Labor Standards Act (FLSA) just to name a few.
- You outsourced the development of your employee handbook or brought a software template- Many Employers outsource the development of their employee handbook and forget handbooks are not cookie cutter. You may have a policy that you are not following. For example; the handbook has a non-solicitation policy but your business allows the sale of cookies, candy, magazine fundraisers from schools. Or your business allows hiring of relatives but the handbook states no hiring of relatives. You can be violating your own handbook.
- Your current handbook does not have Anti-Retaliation or Whistleblower policy- This law impacts any employee who has made good faith allegations of retaliation and whistleblower activities. They are protected and any violation of these laws can impact Employers legally.
- Does your employee handbook Prohibit Employees from discussing their pay or work conditions on they worksite and in social media? For many years, Employers had policies against employee discussions about compensation. I even created some of those in the past. However, the National Labor Relations Act (NLRA), a law that targets union and non-union business, passed a law that prohibits Employers from restricting these discussions. This prohibited behavior is called “concerted activities” which describes discussions between employees about their work conditions including pay, supervisors and policies.
- Does your handbook include a disciplinary process that it does not follow? It never ceases to amaze me how many times a business has a disciplinary process and they use it sporadically depending on the employee. This is a good way to have employees allege discrimination. Make sure that you follow you process consistently and fairly.
- Do you have employees sign that they have received and agree to your handbook? With the new electronic and technology vehicles it is easy to miss sending communications to employees. It is tempting to send employees handbooks via email or on your Intranet. This is a good communication plan however; the most effective method is to have them also receive a hard copy that they can sign. Remember, this is one of the documents requested by attorneys during workplace litigation. Make sure that you place the signed document in employee’s personnel file.
- Does your handbook include a workplace investigation process that has a confidentiality clause? As an HR professional and former Compliance Officer, it was part of our investigation process to ask witnesses to keep the investigation confidential and not discuss any part with other employees. However, this can violate the NLRA regulations which state that Employers cannot prohibit these discussions except under strict guidelines: As an HR professional and former Compliance Officer, it was part of our investigation process to ask witnesses to keep the investigation confidential and not discuss any part with other employees. However, this can violate the National Labor Relations Act (NLRA) regulations which states that Employers cannot prohibit these discussions except under strict guidelines: Witnesses need protection, evidence in danger of being destroyed, testimony in danger of being fabricated and need to prevent a cover‐up
Now that we have made Employers nervous, let me add a few employee handbook suggestions that can help:
- Make sure that you have an employee handbook and have employees review and sign. I had an employer tell me that they did not need an employee handbook because they never had a problem in 30 years. Then, they had an incident. Best practice is to have an overview during orientation and onboarding that includes discussion of your employee handbook, policies and practice. This can help if there are any disputes during litigation.
- Have an HR professional or employment law attorney review your handbook before it is distributed to employees. It is worth the cost to ensure that you are in compliance with local state and local regulations. Have the employee handbook reviewed annually by a knowledgeable HR professional or Attorney.
- Include a mediation policy as part of your grievance process. Although it does not preclude employees from suing, it will demonstrate that the Employer has made good faith effort in resolving employee issues. It may also minimize the legal costs of a lawsuit if it is resolved in house.
- Include several identified levels in your grievance procedure. It is best if you include the CEO, other senior management levels, HR and an option if HR is being accused
- Ensure that you partner with a knowledgeable and reputable HR professional who can guide you in workplace compliance and has current experience in current regulations.
Margie Faulk, PHR, SHRM-CP is a Senior Compliance Consultant for HR Compliance Solutions. Margie has 15 years of experience in human resources management, workplace compliance, workplace investigations, risk management and creating exit plans for volatile and aggressive employees. As a former Compliance Officer, Margie helps businesses, Employers and HR professionals reduce workplace risk when dealing with workplace issues. If you want further information about employee handbooks and other workplace resources and tools, contact Margie Faulk at email@example.com.