Weitzman - Employee Handbooks: Every Word Counts

Allan H. Weitzman | August 30, 2010

Employee Handbooks:Every Word Counts

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Seven Principles to Follow When Creating an Employment Handbook

I. Make Sure Your Handbook is NOT an Employment Contract

II. Plainly State Employer Rules, Regulations and Procedures

III. Describe Your Policies Designed to Assist EmployeesIV. Communicate Your Commitment to Equal OpportunityV. Set Guidelines for the Termination of EmploymentVI. Develop Cutting Edge PoliciesVII. Incorporate State and Local Legal Requirements into

Your Handbook

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I.

Make SureYour Handbook

is NOT an Employment

Contract

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Make Sure Your Handbook Is Not an Employment Contract

• Handbooks Can Be Interpreted as Creating Express or Implied Contracts> State law controls> Old handbooks may create rights that cannot be freely

changed

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Handbooks May Create Implied Contracts of Employment Where:

• Handbook sets forth progressive discipline plan or corrective action procedures

• Handbook distinguishes between “probationary”and “permanent” employees and provides for discharge of “permanent” employees only after specific preconditions are met> e.g., written notice and a 30-day opportunity for

improvement required before termination because of unsatisfactory work performance

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Handbooks May Create Implied Contracts of Employment

• See:> Falls v. Lawnwood Medical Center, 427 So. 2d 361

(Fla. 3d DCA 1983): The court reversed the grant of summary judgment in favor of the employer hospital and remanded the case back to the trial court to consider whether certain policy manuals were part of the employee’s employment contract. Thus, Falls leaves open the possibility that, under certain circumstances, a policy manual might be viewed as constituting an enforceable contract in Florida.

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• See also:> Walton v. Health Care Dist., 862 So. 2d 852, 855

(Fla. 4th DCA 2003) (stating that “while Florida’s courts have expressed a decided reluctance to find that provisions in an employee handbook or policies and procedures manual rise to the level of enforceable contract rights, the courts have acknowledged it is possible for such handbooks or manuals to create enforceable rights if there is language in the employee manual expressly providing that the manual constitutes a separate employment agreement or the parties have reached a mutual agreement to this effect.”) (citations omitted).

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• But see: > Muller v. Stromberg Carlson Corp., 427 So. 2d 266,

268 (Fla. 2d DCA 1983): The court ruled in favor of the employer in a case brought by a discharged employee, stating: “[The Employee] feels that we should find an enforceable inference of . . . contract terms from the company policy. We cannot agree. We see no justification to depart from long established principles that an employment contract requires definiteness and certainty in its terms. . . . Mere expectations are insufficient to create a binding term of employment.”

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• But see also:

> Quaker Oats Co. v. Jewell, 818 So. 2d 574 (Fla. 5th DCA 2002): The appellate court overturned the decision of a lower court that held Quaker Oats responsible for creating a contractual obligation as a result of its employment handbook. Nine employees sued Quaker Oats alleging breach of contract because Quaker Oats failed to pay overtime in accordance with the policies set forth in its handbook. The court held that based upon well established Florida law, policy statements in an employee handbook do not constitute the terms of a contract of employment.

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Disclaimers Assist in Preventing theCreation of Implied Contracts

• Prominently display the disclaimer in the handbook

• Advise employees that the policies and procedures are not intended to create a contract

• Obtain a signed receipt upon distribution of the handbook

• Reserve the right to modify or discontinue the policies and benefits set forth in the handbook at any time, without notice

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• Examples of the role of a disclaimer in a handbook:> Aponte v. Alinabal, Inc., 2008 Conn. Super. LEXIS

1505 (Conn. Super. Ct. May 29, 2008): In determining the validity of disclaimers, Connecticut courts have looked at the specificity of the disclaimer language, its location in the handbook, whether the disclaimer was signed by the employee, and the size of the print. Where, the disclaimer is in the same size print as all other text, underlines the phrase the Handbook "does not constitute an employment contract, neither expressed nor implied," is signed by the plaintiff, and could not be clearer, the progressive disciplinary policy discussed therein did not result in an implied contract.

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• Examples of the role of a disclaimer in a handbook:> Turner v. Fed. Express Corp., 539 F. Supp. 2d 404

(D.D.C. 2008): Handbook does not create an implied contract where the disclaimer expressly states that it is not a contract of employment and should not be read or implied to provide one, and where that language is repeated on the acknowledgement of receipt signed by the employee.

> But see Burns v. Universal Health Servs., Inc., 361 S.C. 221 (S.C. Ct. App. 2004): Where promissory language and disclaimers make the handbook ambiguous, a jury should interpret whether the handbook creates or alters an existing contractual relationship.

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Sample Disclaimer

There are several things that are important to keep in mind about this handbook. First, it contains only general information and guidelines. It is not intended to be comprehensive or to address all the possible applications of, or exceptions to, the general policies and procedures described. For that reason, if you have any questions concerning eligibility for a particular benefit or theapplicability of a policy or practice to you, you should address your specific questions to the Human Resources Department.

Neither this handbook nor any other Company document confers any contractual right, either express or implied, to remain in the Company's employ. Nor does it guarantee any fixed terms and conditions of your employment. Your employment is not for any specific time and may be terminated at will, with or without cause and without prior notice, by the Company, or you may resign for any reason at any time.

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Sample Disclaimer

No supervisor or other representative of the Company (except the President, in writing) has the authority to enter into any agreement for employment for any specified period of time, or to make any agreement contrary to the above.

Second, the procedures, practices, policies and benefits described here may be modified or discontinued from time to time. We will try to inform you of any changes as they occur.

Finally, some of the subjects described here are covered in detail in official policy documents. You should refer to those documents for specific information since this handbook only briefly summarizes those benefits. Please note that the terms of the written insurance policies are controlling.

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Sample Receipt for an Employee Handbook

I acknowledge that I have received a copy of XYZ Company's Employee Handbook. I agree to read it thoroughly, including the statements in the foreword describing the purpose and effect of the Handbook. I agree that if there is any policy or provision in the Handbook that I do not understand, I will seek clarification from the Human Resources Department. I understand that XYZ Company is an “at will” employer and as such, employment with XYZ is not for a fixed term or definite period and may be terminated at the will of either party, with or without cause, and without prior notice. No supervisor or other representative of the company (except the President, in writing) has the authority to enter into any agreement for employment for any specified period of time, or to make any agreement contrary to the above. In addition, I understand that this Handbook states XYZ's policies and practices in effect on the date of publication. I understand that nothing contained in the Handbook may be construed as creating a promise of future benefits or a binding contract with XYZ for benefits or for any other purpose. I also understand that these policies and procedures are continually evaluated and may be amended, modified or terminated at any time.

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Disclaimers Don’t Solve Every Problem

Even with a disclaimer, it is important for an employer to

follow its handbook policies.

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II.

Plainly State Employer Rules,Regulations and

Procedures

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Plainly State Employer Rules, Regulations and Procedures

• Access to Personnel Records• Anti-Nepotism or No-Spouse Rule• Searches on Employer Property• In-House Investigations• No Solicitation, Bulletin Boards and E-Mail Rules• Travel Policies• Attendance, Punctuality and Dependability• Performance Evaluations• Payment of Wages• Employer Property

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• Deductions from pay for unpaid disciplinary suspension of one or more full days for infractions of workplace conduct rules applicable to all employees – exempt and non-exempt (pursuant to FLSA DOL regulations)

• Policy that prohibits improper pay deductions and creates avenue for employee complaints concerning deductions

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• Confidentiality and Communications Policies> Recent NLRB and court decisions have found that

some confidentiality and employee communications policies violate the NLRA

> NLRA Sec. 7 protects employee right to engage in “concerted activities”

> Applies to both unionized and non-unionized employers

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III.

DescribeYour Policies

Designedto Assist

Employees

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Describe Your Policies Designed to Assist Employees

• Federal Family and Medical Leave Act

• State Family and Medical Leaves of Absence

• Pregnancy, Disability and Child Care Leaves of Absence

• Short Term Disability Leaves of Absence and Salary Continuance Policies

• Military Leaves of Absence• Jury Duty Leave• Bereavement Leave• Employee Assistance Programs• Other Time Off:

> Vacations> Holidays> Religious Observance> Personal Days> Flex Time > Blood, Bone Marrow, and

Organ Donation Leave> Domestic Abuse Leave

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Recent Developments

• “Reasonable Break Time For Nursing Mothers”> Section 4207 of the Patient Protection and Affordable

Care Act (P.L. 111-148) signed into law by President Obama on March 23, 2010 requires that:

• Break time be provided for one year after a child's birth each time an employee has need to express milk.

• Provision of a private, shielded place other than a restroom in which the nursing mother may express breast milk.

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Recent Developments

> Section 4207 does not specify what constitutes “reasonable” break time, nor does it indicate any limits on the number of breaks a nursing worker may take.

> The measure does not preempt state laws with more generous provisions for nursing mothers.

• E.g., Ca. Civ. Code § 43.3 (2007), Cal. Lab. Code § 1030 (2007)

– Employer must allow the mother to breastfeed her child in any location mother and child are otherwise permitted to be (does not apply to expressing milk).

– Employer must provide storage (e.g., a refrigerator) for expressed milk.

– The penalty for violating this statute is $100.00 per violation.

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Recent Developments

• The 2010 National Defense Authorization Act> Service-Member Family Leave

• Provides up to 26 weeks/year of protected unpaid leave within 5 years of injury to any eligible employee who is the spouse, child, parent, or next-of-kin of a covered service-member or veteran to care for his or her relative (the service-member) injured during active duty

> “Qualifying Exigency” Leave

• Permits an otherwise eligible employee to take up to12 weeks/year of leave as a result of any “qualifying exigency” (e.g., employee’s spouse, child, or parent is on or called to active duty in the regular Armed Forces in support of a “contingency operation”)

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Recent Developments

• Employees ineligible for FMLA leave may have cause of action based on handbook statements> Peters v. Gilead Sci., Inc., 533 F.3d 594

(7th Cir. 2008):

• An employee handbook promised 12 weeks of leave and recited the 12-month, 1,250-hour prerequisites for FMLA eligibility, but failed to mention the 50/75 exception. In addition, the employer informed the employee that he was eligible for leave. Prior to reinstatement, the employee was terminated based on his statusas a “key employee” under the FMLA.

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Recent DevelopmentsContinued…> Peters v. Gilead Sci., Inc., 533 F.3d 594

(7th Cir. 2008): The employee, though statutorily ineligible for FMLA leave under the 50/75 rule, could assert a valid promissory estoppel cause of action under Indiana state law. The court held that the leave provisions in the employee handbook may be enforceable as a contract under Indiana law, and, at the least, are promises giving rise to recovery under promissory estoppel.

> Jadwin, D.O. v. County of Kern, 610 F. Supp. 2d 1129 (E.D. Cal. 2009): The court held that when an employer grants FMLA leave, estoppel can bar an employer from later challenging the timeliness of the notice, noting that estoppel can also bar an employer from later challenging eligibility for that leave.)

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IV.

Communicate Your

Commitment to Equal

Opportunity

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Communicate Your Commitment to Equal Opportunity

• Equal Employment Opportunity Policies• Anti-Discrimination, Harassment and Retaliation

Policies and Complaint Procedures> Faragher and Ellerth> Gorzynski> Suders > Kolstad> Burlington Northern

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Equal Employment Opportunity Policy Statement

• Equal Employment Opportunity has been, and will continue to be, a fundamental principle at XYZ, where employment is based upon personal capabilities and qualifications without discrimination because of race, color, religion, sex, pregnancy, age, national origin, disability, genetic information, or any other protected characteristic as established by law.

• This policy of Equal Employment Opportunity applies to all policies and procedures relating to recruitment and hiring, compensation, benefits, termination and all other terms and conditions ofemployment.

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Equal Employment Opportunity Policy Statement

• Employees’ questions or concerns should be referred to the Human Resources Department, which has overall responsibility for this policy and maintains reporting and monitoring procedures.

• Appropriate disciplinary action may be taken against any employee willfully violating this policy.

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Elements of an Anti-Harassment Policy

• Include Sex and All Other Protected Characteristics (check local and state laws)

• Specifically State EEOC’s Definitions• Define Other Forms of Harassment• Give Examples of

Harassing Behaviors• Define Supervisory

Responsibility

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Elements of an Anti-Harassment Policy

• Outline Penalties for Engaging in Harassment

• Set Forth Clear, Internal Complaint Procedure, with Multiple Intake Points> [Not Just Supervisor!]

• State Employer’s Investigation Obligations

• Limited Confidentiality Assurance

• Include Anti-Retaliation Provision

V.

Set Guidelines for the

Termination of Employment

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Set Guidelines for theTermination of Employment

• Required Notifications

• Severance Pay Policies

• Post Employment References

• Grievance or Complaint Procedures

• Arbitration and/or Jury Trial Waiver Agreements

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Arbitration Agreements

• Arbitration agreements provide that any claim or controversy arising out of the employment relationship will be submitted to an impartial private arbitrator for final and binding resolution.

• Arbitration agreements are valid and enforceable in the employment context.

• Advantages To Mandatory Arbitration> Reduces litigation expenses

> Minimizes litigation risks

> Promotes confidentiality

> Improves employee relations

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Jury Trial Waivers

• What they mean

• Jury Trial Waivers Are Generally Enforceable

• The Advantages of Jury Trial Waivers> Removes risk that prejudiced and impassioned juries

will decide on a large verdict for the employee

> Avoids additional expense of arbitrator’s fees

> Judges are more inclined than arbitrators to impose sanctions, if necessary

> Judges are more likely to grant motions to dismiss on the pleadings and summary judgment

> Judge’s decision is subject to full appellate review

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VI.

Develop Cutting Edge

Policies

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Develop Cutting Edge Policies

• Technology Policies> Social Networking

Sites/Blogging> Company Equipment

• Use for Business Purpose Only

• Be Courteous> No Expectation of

Privacy/ Employer Property

> Waiver of Privileges> Anti-harassment Policies

are Applicable

> E-mail, Voicemail, Blackberries and PDAs, Internet, Instant Messaging, Chat Rooms, Public Internet Posting, etc.

> Telephone Call Monitoring

> Tape Recording> Telecommuting

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Cell Phones

• Potential liability to the employer may attach based on employees’ use of cell phones while driving in the course of their employment> An employer is vicariously liable for an employee’s

negligence if the employee’snegligent act(s) occurred withinthe scope of his or heremployment and was infurtherance of the employer’sinterest

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Cell Phone Tips for Employers to Avoid Liability

• Make sure that employees know the features available on their cell phone and how to use them

• Prohibit the use of hands-free devices, memory, one-button and voice-activated dialing

• Check that the cell phone is within easy reach of the driver

• Advise employees to inform anyone with whom they are speaking that they are driving while on the phone

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Cell Phone Tips for Employers to Avoid Liability

• Advise employees to avoid using cell phones during hazardous weather and traffic conditions

• Ensure that employees do not look up phone numbers or take notes while they are driving

• Advise employees to make calls while they are not moving or prior to pulling into traffic

• Advise employees to avoid emotional or stressful discussions while driving

• NO TEXTING!!!

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Special Issue: Camera Phones

• Total or partial ban• If partial, ban camera

phones in restrooms and locker rooms

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Drug and Alcohol Testing in the Workplace

• Benefits of drug-free workplace policies > Decreases in absenteeism, turnover, downtime,

accidents and thefts > Increased productivity and overall employee morale

• A drug and alcohol testing policy should be part of the company’s drug-free workplace policy > Include a detailed

description of the drugtesting procedures

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• Generally, employers may test applicants and employees in the following circumstances (subject to state and local laws)> During a yearly physical> Prior to transfers or promotions> Prior to being placed in positions involving security,

safety or money > After an accident> Where used drugs in past> After treatment> Based on reasonable suspicion> On a random basis

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• Under Florida’s Workers’ Compensation Law, employers are permitted to require job applicants to submit to drug and alcohol tests provided that the employer first implements a drug-free workplace program that includes notice, education and testing in accordance with Florida’s Drug Free Workplace Act, FLA. STAT. §440.102.

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Dress and Grooming Codes

• Employers are free to define business attire differently for men and women

• Courts have upheld> Prohibitions on female employees wearing pants

• But see California Government Code Section 12947.5: making it unlawful for an employer torefuse to permit an employee to wear pants on account of the sex of the employee (but not prohibiting an employer from requiring an Employee to wear a uniform).

> Prohibitions on male employeeswearing an earring

> Policies on hair length for men

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Special Issue: Body Piercings and Tattoos

• Some courts have upheld company policies that prohibit wearing facial piercings or body art in the workplace.

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Cross-Dressing in the Workplace

• Some courts have held that a male employee dismissed for wearing female attire cannot successfully bring a claim of sex discrimination.

• However, cross-dressingmay be protected under

certain state and localanti-discrimination laws.

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Guns in the Workplace

• Requirements of the Occupational Safety and Health Act (“OSHA”):> Employers must provide a workplace that is “free from

recognized hazards that are causing or likely to cause death or serious physical harm to his employees.”

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State and Local Gun Laws

• Before implementing a ban on weapons, check state and local laws.> Many states have enacted laws that prohibit

employers from enforcing any workplace policy that would prevent their employees from storing guns in their cars on a company lot:

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State and Local Gun Laws

• 2010> Indiana (HEA 1065) Signed

by Governor• 2009

> Arizona (SB 1113) Signed by Governor

> Idaho (HB 287) Signed by Governor

> Montana (HB 228) Signed by Governor

> Utah (SB 78) Signed by Governor

• 2008:> Florida (HB 503) in effect> Georgia (HB 89) in effect> Louisiana (SB 51) in effect

• 2007> Kansas (HB 2528) -

Governor's veto overridden• 2006

> Kentucky (HB 290) (in effect)

> Mississippi (HB 1141) (in effect)

• 2005> Oklahoma (HB 1243): in

effect> Alaska (HB 184): in effect> Minnesota (SB 2259): in

effect (part of "Shall Issue" CCW legislation)

> Kentucky (SB 142): in effect

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Weapons Policy

• If an employer decides to ban weapons in the workplace, the policy should:> Define terms such as “weapon,” “firearm,” and

“possess”

> Clearly state the policy’s purpose

> State that, despite state and local law provisions that allow the carrying of concealed weapons, the employer has elected to prohibit weapons on its property

> Clarify whether the policy applies only to employees or to all persons entering the employer’s premises

> Explain which areas are covered

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Weapons Policy – Drafting Tips

• If an employer decides to ban weapons in the workplace, the policy should also contain:> A description of the employer’s policy on workplace

searches

> A statement that employees have no reasonable expectation of privacy in their personal work areas

> A signed, written acknowledgment of the policy

> Disciplinary consequences for violating the policy

VII.

Incorporate State and

Local Legal Requirements

into Your Handbook

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Incorporate State and Local Requirements into Your Handbook

• Specified Personnel Policies• Workplace Smoking Policies• Voting Policies• Jury Duty Policies• Blood, Organ, and/or Bone Marrow

Donation Leave• Protected Off-Duty Legal

Activity• Breastfeeding

Accommodations

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QUESTIONSQUESTIONS

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FOR AN OUTLINE OF LEGAL REFERENCE MATERIALS

CONCERNING THE FOREGOING PRESENTATION, THE LINK IS:

http://www.proskauer.com/files/News/c326b490-d6f7-472f-a36b-2b1fccb8f5f9/Presentation/NewsAttachment/78d4f426-25ed-

42f9-aecd-2d9dbeab1a44/shrm-2010.pdf

http://www.proskauer.com/files/News/c326b490-d6f7-472f-a36b-

Allan H. Weitzman | August 30, 2010

Employee Handbooks:Every Word Counts