The employee handbook is a must-read

This may be the perfect time to move reviewing your employee handbook up a few lines on your summer to-do list.

A well-written employee handbook plays a few important roles in the workplace. These include:

Creating a workplace culture. The employee handbook can play a role in defining the culture of your workplace. For example, it can reinforce commitments to innovation, individual success, fairness and respect in the workplace.

Setting expectations. Carefully crafted policies help set employee expectations regarding company rules, the employment relationship and how certain situations will be handled.

Establishing procedures. Employees will be aware of and have a reference for workplace procedures, such as how to update personal information or use employee benefits, as well as who to notify if they witness inappropriate workplace behavior.

Supporting terminations. When employees are aware of their employer's expectations and procedures, and fail to fulfill their responsibilities, the employee handbook may be a useful tool explaining and supporting the termination of employment.

Legal defenses. In some cases, a well-written employee handbook can support an employer's legal defense in an employment matter. For example, if the employee handbook contains an at-will employment statement, explains the procedure for reporting discrimination or harassment, or clearly notifies employees that they cannot expect privacy with the company email system, these policies may be useful to a legal defense in the event of related litigation.

I previously listed a few "must haves" for your employee handbook such as an at-will employment statement, an equal employment opportunity (EEO) policy, and a reasonable accommodation policy. Here are a few more:

Harassment and retaliation policy. Every employer should adopt an anti-harassment policy that prohibits sexual harassment, as well as all other forms of unlawful harassment and discrimination. This policy should establish: 1) definitions of sexual harassment and other types of unlawful harassment, and provide examples of each; 2) a clear statement that illegal harassment in any form will not be tolerated; 3) internal complaint procedures for employees to report harassment, with multiple contacts for the employee to select from; 4) a statement that a prompt investigation will take place and appropriate remedial action will be taken to stop the unlawful harassment; and 5) a strong statement assuring employees who report harassment, or participate in an investigation, that retaliation will not be tolerated.

Timekeeping policy. Both state and federal employment laws require employers to maintain accurate records of all time worked for each employee. Without an accurate timekeeping system, including a timekeeping policy explaining how and when employees are required to record worktime, employers may be exposed to wage and hour liability for unpaid wages and/or overtime.

Overtime policy. Overtime can also be problematic for many employers. An overtime policy should clearly communicate when and under what circumstances overtime will be allowed. For example, the policy may state that overtime will only be allowed with prior authorization by the employee's manager. However, it's important to remember that employees must be paid for all time worked, including unauthorized overtime.

Meal break policy. A meal break policy should instruct employees to clock in and out for meal breaks and contain procedures to notify management in writing when they are required to work through a meal break.

Lawful deductions policy. The Fair Labor Standards Act (FLSA), as well as state law, allows for certain employees to be exempt from overtime. However, many employers don't realize that they may lose the exempt status of some employees and make those employees - and possibly all employees in that job category - eligible for overtime pay. This is often the result of the employer taking improper deductions from the exempt employee's salary. Generally, employers cannot take deductions for the quality or quantity of work, or violations of some company policies. (State law also prohibits deductions from any employee's wages for things like cash shortages, damages, and loss of company property.) A policy prohibiting improper deductions and containing procedures for employees to report suspected improper deductions is vital for every employee handbook.

FLSA "safe harbor" statement. The U.S. Department of Labor provides employers with a defense in the event improper deductions are erroneously made. Under this so-called "safe harbor," the exempt status of the affected employees will not be lost if the employer has a clearly communicated policy prohibiting improper deductions and establishes a clear complaint procedure for employees. The policy should also communicate that the employer will reimburse the employee(s) for any improper deductions in a timely manner and will make a good faith effort to comply with the FLSA going forward. Finally, the policy should contain a clear anti-retaliation statement that emphasizes the company's commitment to not retaliating against employees who make good-faith complaints regarding improper deductions, or any possible other wage and hour violations.

Are these the only "must have" policies? No. Employers should strongly consider several other policies: an immigration (a legal workforce) policy, a zero tolerance drug/alcohol policy and policies covering the employer's right to search employees' personal property, monitor and access company voicemails, emails and internet use, and conduct drug and alcohol testing.

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Frank A. Cania is president of driven HR, a Pittsford, New York-based human resource consulting firm. He concentrates on wage-and-hour, FMLA, ADA, Title VII, and Form I-9 compliance, as well as workplace investigations.

Published: Wed, Aug 01, 2018

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