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ManageMent
www.us-
tech.com Top 10 Employee Handbook Mistakes By Scott Ludema D
one right, employee handbooks serve multiple functions. They provide employees with impor-
tant information about a company, its practices and the working environ- ment. They also help protect employ- ers legally by setting clear expecta- tions and standards that employees must comply with. But done wrong, employee handbooks can do more harm than good. Policies that are too specific and rigid can potentially limit an employer’s flexibility when dealing with real issues. Policies that are too general make it difficult for employers to hold employees accountable for their actions and behavior. Here are 10 common employee handbook mis- takes, and what to do about them.
10. An Overly Detailed Discipline Procedure. Discipline procedures are often too detailed and constricting to address with workplace realities. For instance, a policy promising a verbal warning as a first disciplinary step does not make sense if the first inci- dent is a serious violation of a harass- ment prevention policy or an act of workplace violence. In such a situa- tion, an employer wants the flexibility to skip steps, or even ignore the process entirely. If an employer has a policy of employment at-will, then the
employer has no obligation to provide a specific discipline procedure. In- stead, the employer can handle disci- plinary issues as they arise, maintain- ing consistency by centralizing disci- pline functions. To avoid confusion and maximize
flexibility, an employer should specify at the beginning of the handbook that violation of any company policy — even one not stated in the handbook — has the potential to lead to discipline.
9. Not Controlling Meal and Rest Periods. Employees should be ad- vised that if they do not take their meal and rest periods as described, they must notify their supervisors im- mediately. Also, if denied the right to take their meal or rest periods, em- ployees should be advised how and where to bring complaints.
8. Not Controlling Overtime. Em- ployers should define the “workweek” for purposes of calculating overtime. Otherwise, employees may be free to define the workweek as they choose, po- tentially increasing overtime liability. The overtime policy also should specify that employees are not permitted to work overtime without prior superviso- ry authorization. Though an employer can’t refuse to pay an employee who
works unauthorized overtime, the em- ployer can discipline employees who fail to follow the specific directive not to work overtime without permission.
7. Improper Deductions and Prop- er Reimbursements. Some employ- ers make a big mistake not only in making improper or illegal deductions from a paycheck, but also in reflecting that practice in their handbooks. Carefully ensure that any policies re- lating to deductions do not violate the law; employers should include a “safe harbor” policy that addresses deduc- tions for exempt employees. This poli- cy should require exempt employees to notify the employer immediately if they believe illegal deductions have been made from their salaries. Many employers make mis-
takes when drafting expense reim- bursement policies. Commonly, employ- ers seek to encourage employees to sub- mit business expenses for reimburse- ment promptly by stating that failure to do so within a certain timeframe will re- sult in no reimbursement.
6. Putting a Cap on Medical Leaves. Under the federal Americans with Disabilities Act (ADA), employ- ers may be required to permit an em- ployee with a disability to take time off if doing so will allow the employee to recover and return to work. Unfor- tunately, few employers are aware that a policy imposing a “cap” on the amount of leave provided for this pur- pose — such as three months — can create legal problems. Employers can limit the pos-
sibility of problems with the EEOC by maintaining flexible leave policies that make clear each situation will be evaluated individually.
5. Use it or Lose it Vacation Poli- cies. Employers can’t encourage em- ployees to take vacations with a “use it or lose it” policy. Under such a poli- cy, an employee who fails to use all his or her vacation/PTO at the end of the year loses the right to take it. Be- cause vacation/PTO is considered a wage, such a policy deprives employ- ees of a vested right. Instead, vacation policies should
be written to allow accrual up to a maximum, with no additional vacation accrual once an employee reaches the maximum. If an employee’s accrual falls below the maximum, then he or she begins accruing vacation again. The maximum should be a “reason- able” amount, so that employees have sufficient opportunity to take time off. The Labor Commissioner has stated, for example, that one year’s worth of vacation is not reasonable. Employees should be permitted to accrue more than one year’s worth of vacation. Gen- erally, adopting a maximum or “cap” of 1.25 times the annual accrual should be sufficient.
4. Electronic Communications Policies. Employees need access to e- mail, the Internet and other modes of electronic communication to do their work. For employers, these technolo-
gies have potential downsides, such as wasted time, security problems and the possibility that employees will use these means to violate company poli- cy. To control these problems, some employers specify that electronic com- munications and systems can be used only for business purposes. However, the federal National La-
bor Relations Board (NLRB) has taken the position that an employer’s rigid policy prohibiting the use of its electron- ic communications systems for any non- business purpose may have the effect of “chilling” union organizing. Such a re- striction, the NLRB reasoned, could vi- olate the National Labor Relations Act. Therefore, a policy on electronic com- munications should not entirely prohib- it use of electronic systems for non-busi- ness use.
3. A Rigid Harassment Prevention Policy. A “no harassment” preven- tion policy is a must-have for all em- ployee handbooks. It helps employers defend claims of harassment when employees fail to follow the company’s internal processes for reporting po- tentially harassing behavior. But em- ployers should not focus on “unlawful” harassment. For example, if a policy defines a “hostile work environment” in the same way the law does, then any violation of the policy will auto- matically be a violation of the law. To avoid this result, the employer should define “harassment” under the policy using a stricter standard than the ac- tual legal definition. A policy could define harassment as “disrespectful or unprofessional conduct based on a protected characteristic, such as sex, race or national origin.” Then, an in- appropriate joke based on one of these characteristics would violate the poli- cy, not the law.
2. Over- or Under-Acknowledging. Employers should request that em- ployees acknowledge receiving and reading the handbook. Most importantly, an acknowl-
edgment is a key place to reiterate a concept that the employer should have communicated many times already: employment at-will. That means ei- ther party can end the employment re- lationship at any time, for any reason and with or without notice. The ac- knowledgment should also specify which specific person (such as the company CEO or president) can make an agreement to the contrary on the company’s behalf, in a written agree- ment only. 1. Not Reviewing/Revising the Handbook Regularly. Employment laws change frequently. Keeping poli- cies up-to-date ensures decision mak- ers and employees are informed. A handbook is a great place to summa- rize information for the benefit of em- ployees and for the benefit of those people who will help an employer im-
plement the policies. Contact: Ottawa Kent Insurance,
P.O. Box 349, Jenison, MI 49429 % 844-797-3400 or 616-797-3400 fax: 616-457-4050 Web:
www.ottawakent.com r
March, 2015
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