Employee Handbook Q&A

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Question:


We recently made some changes to our handbook policies regarding benefits offered to employees and have a disclaimer stating, “The Company reserves the exclusive right to change or terminate any benefits or related policy at any time in accordance with applicable law.” Are we required to have employees sign a new acknowledgement of the handbook because of these recent changes?

Answer:


Yes, employees should be required to sign an acknowledgement noting that they are aware of any new policies or changes to existing policies.

Any new or changed policy should be provided to employees through the distribution of a new handbook accompanied by a brief memo directing the employees to the locations of the changes and requesting an updated acknowledgement signature. Without distributing and getting proof of receipt, the changed policies may be difficult to point to when correcting, disciplining, or terminating an employee. Most employers update their handbooks every one to two years. If there is a major change to an integral policy, that may be distributed separately and added to the handbook as an addendum until the next revision.

While not required, handbooks are a best practice in order to minimize risk. Clearly articulated and distributed handbooks can supplement a defense against many compliance issues such as, but not limited to, claims of sexual harassment, wrongful termination, and discrimination.

Handbooks are a general overview of policies and procedures. Key handbook policies include:

  • Definitions of commonly used terms.
  • Explanation of to whom the handbook and its policies apply.
  • At-will employment policy.
  • Disclaimer that handbook is not a contract and the right to change policies without notice.
  • Antiharassment policy.
  • Equal employment opportunity/discrimination/accommodation policies.
  • Leave of absence and family and medical leave policy (if applicable).
  • Maternity leave policy.
  • Drug free workplace policy.
  • Standards of conduct.
  • Timekeeping and overtime.
  • Paid time off/vacation/sick leave policies.

Lastly, because a handbook is not legally mandatory, it may contain whatever information an employer wishes to impart to its employees. In addition, handbooks are traditionally separate from benefits summaries and other health and welfare plan materials, although the handbook may discuss employee status (full time, part time, etc.) and may refer employees to benefit plan materials. Further, handbooks do not need to outline company job positions or titles; this can be maintained separately in the job descriptions.

As a best practice, we recommend reviewing new or modified policies with counsel prior to implementation.

Question:

We are looking at our handbook, and wanted to just double check our table of contents to make sure we werent missing any important topics to cover.  Could you provide a list of Handbook Topics?

Answer:


Sure!  We did just finish doing an exhaustive self audit that I recommend you go through, but here is a quick list of topics every handbook, at a minimum, should address.  There could be more depending on your state of course!  I recommend checking with a labor lawyer or HR professional for a more in depth check.

Listing of Employee Handbook Topics

  • Welcome:
    • Purpose of the employee handbook.
    • Corporate vision and mission.
    • Employment-at-will statement.
    • “This Handbook is not a contract statement.”
    • Reservation or rights statement.
  • Key Employment Policies:
    • Initial period of employment.
    • Statement of equal employment opportunity.
    • General antiharassment policy, including ADA statement.
    • Sexual harassment policy.
    • Drug- and alcohol-free workplace.
    • Smoking policy.
    • No solicitation/no distribution policy.
    • Safety and health.
    • Open door policy.
    • Compliant procedures.
  • General Working Policies:
    • Confidential information.
    • Personal appearance/dress code.
    • Standards of conduct and code of ethics.
    • Business expense reimbursement.
    • Company rules.
    • Bulletin boards.
    • Computers, electronic mail, and voice mail policy.
    • Company vehicles.
    • Personal phone calls.
    • Workplace violence policy.
    • Discipline policy.
    • Attendance policy.
    • Call-in procedures.
    • Personnel files.
    • Requirements for medical exams.
    • Use of mobile phones policy.
  • Employee Development:
    • Performance evaluations.
    • Promotional opportunities and transfer policy.
  • Hours and Attendance:
    • Hours of operation.
    • Employment classifications.
    • Exempt and nonexempt status.
    • Full-time and part-time employment.
    • Temporary employment.
    • Independent contractor status.
    • Absence and lateness policy.
    • Severe weather and emergency situations.
    • Meals and rest breaks.
    • Overtime.
  • Pay Periods and Paychecks:
    • Compliance with wage and hour laws.
    • Equal pay statement.
    • Pay periods.
    • Time keeping.
    • Deductions from pay.
  • Leaves of Absence/Time Off:
    • Holidays.
    • Vacation and personal leave.
    • Sick leave.
    • Funeral (bereavement) leave.
    • Jury and witness duty.
    • Military reserves and National Guard.
    • FMLA leave.
  • Benefits:
    • General benefits policy.
    • Group health insurance.
    • Disability and life insurance.
    • Retirement/savings.
    • Government required coverage.
    • Insurance premiums during a leave of absence.
    • Educational assistance and reimbursement.
  • Employment Separation:
    • Separation of employment.
    • Reference checks-post employment inquiries.
    • Noncompete and conflict-of-interest policy.
    • Separation and last paycheck.
    • Rehire policy.
  • Agreements:
    • Acknowledgement and receipt of employee handbook.
    • Noncompete/antipiracy agreement.

Question:


We are a small company of 40 employees. Are there policies we should have in place for cybersecurity? Can we make employee training on cyber security mandatory?

Answer:


Companies of all sizes are smart to be concerned about cybersecurity, especially in light well publicized ransomware attacks like the WannaCry attack in 2017. There are steps you can take to reduce the risks as the first line of defense against data breaches, malware infiltration, and various other security risks. Employees are your first line of defense and ensuring that they are trained to identify and report suspicious emails and other security threats is important. The decision on whether cybersecurity training should be mandatory is yours. You can consider assigning employees a training course and allowing them ample time to complete it or adding it to new employee onboarding activities.

It’s a good idea to train employees to:

  • Be skeptical—if they receive an email, view a webpage, or see a social media post with a too-good-to-be-true offer, they should think before clicking.
  • Report suspicious emails—give employees concrete information on how to report emails that may be phishing (attempts to get employees to share confidential or sensitive information) or fraudulent.
  • Ask questions like:
  • Do I recognize the sender’s email address?
  • Do I recognize anyone else copied on the email?
  • Is the domain in the email address spelled correctly or is it simply close to the actual URL (like amazon.com versus anazon.com)?
  • Would I normally receive an email from this individual?

Remind employees that they should never click on a link in an email or open an attachment until they are absolutely certain that the link or attachment is valid. You can consider a simple reminder like “Think! Don’t click!” that you include in informational emails about cybersecurity.

Finally, we do recommend having a published cybersecurity policy. Include it in your employee handbook and be sure to review it with current and new employees. Your policy should include guidelines for:

  • IT assets and mobile devices.
  • Access control.
  • Maintenance of antivirus software.
  • Contractors, vendors, and outsourcing.

In addition, the policy should include information about the repercussions of noncompliance.

 

Question:


We are revising our employee handbook and it was recommended that we include an NLRA “savings clause.” What do you recommend?

Answer:


A blanket “savings clause” in relation to the National Labor Relations Act (NLRA) is a clause added to the beginning of an employee handbook in an effort to shield employer liability from unlawfully overbroad policies that violate § 7 of the NLRA. For instance, Macy’s Inc. used the following disclaimer as an introductory page to its handbook:

Nothing in the Code or the policies it incorporates, is intended or will be applied, to prohibit employees from exercising their rights protected under federal labor law, including concerted discussion of wages, hours or other terms and conditions of employment. This Code is intended to comply with all federal, state, and local laws, including but not limited to the Federal Trade Commission, Endorsement Guidelines and the National Labor Relations Act, and will not be applied or enforced in a manner that violates such laws.

However, an administrative law judge (ALJ) in a lawsuit against Macy’s, Inc. decided in 2015 that the savings clause did not neutralize the employer’s unlawful policies. According to the ALJ and the National Labor Relations Board (NLRB), the NLRB has strict policies for employers attempting to reject unlawful rules. The NLRB has stated (in DirecTV, 359 NLRB No. 5), in order for a savings clause to serve as a defense to an unfair labor practice finding, it must be timely, unambiguous, specific in nature to the coercive conduct, and untainted by other unlawful conduct. There must be adequate publication of the clause to the employees involved, and the language must assure employees that, going forward, the employer will not interfere with the exercise of their § 7 rights.

According to the NLRB, a savings clause must be specific in nature to the coercive conduct and expressly reference an employee’s rights protected by the NLRA. Savings clauses cannot be written in a generic manner, especially when unlawful restrictions are very specific (as in First Transit, Inc., 360 NLRB No. 72).

If you are considering including a savings clause in your employee handbook, be sure to work with legal counsel specializing in employment law to ensure that your policy is targeted and specific to your company’s needs.

About the author, Rhamy

Rhamy grew up watching and working with his mother and grandmother in the seniors insurance market. This familiarity with the struggles faced by people trying to navigate the incredibly complicated and heavily regulated healthcare market led him to start Poplar Financial while working on his degree at the University of Memphis. After completing his MBA and Bachelors in Finance and Economics, Rhamy guided Poplar Financial through the disruptive opportunity that is the Affordable Care Act. Since then Poplar Financial has received numerous awards from major insurance carriers, and has completed its fourth year in a row of doubling in size. Now his team focuses on the processes around human resources, and specializes in providing companies with between 20 and 1000 employees with the payroll, benefits, and HR needs.

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