Avoiding Common Pitfalls in Drafting Handbooks
As pointed out in the other sections, an imprecise or ambiguous handbook can do more harm than good. Likewise, an incomplete handbook, especially one that does not contain strong language regarding the employees’ at-will status, can lead to lawsuits for an employer. Employers should ensure that they obtain assistance from counsel or a qualified human resource professional before issuing a handbook to employees. Counsel should review handbooks periodically (no less than every year) to ensure compliance with current law.
Another drafting pitfall is the failure to include language providing for employer discretion or changed circumstances. Many personnel policies are drafted to read like contracts (e.g., “employees shall be entitled to…” or “the company shall…”). While this language is not legally improper, most employers do not want to create contract rights, but employment privileges. If this is the case, the handbook should contain language stating, where appropriate, that the policies are conditioned on the employer’s discretion (e.g., “education leave will be granted only if the company determines, in its sole discretion, that such leave will not interfere with its operations”) or that stated examples or procedures are illustrative only (e.g., “conduct that will result in discipline, includes, but is not limited to…”).
This “discretion language” allows the employer the ability to avoid employee abuse or differentiate between employees that may not be similarly situated. At minimum, employers should avoid using language that conveys entitlement or permanency. Thus, for example, if the manual contains a progressive discipline policy, the policy should not state (or imply) that the progressive steps will be followed in each and every case; rather, the policy should allow the company to vary from the progressive discipline policy as it deems necessary.
Likewise, the manuals should also contain language that makes clear that the employer retains the right to modify or supplement the manual as circumstances require. Often, employers face changing business environments that dictate changes in personnel policies (particularly in the benefits area). In these circumstances, the employee handbook should not hamstring the employer, but should allow for flexibility. Employees must be on notice that these changes may occur.
Another common pitfall that employers confront when drafting employee handbooks is over-drafting. In an attempt to forestall the litigious or problem employee, employers (or their counsel) attempt to create handbooks that address all conceivable situations. These employers’ handbooks read like union contracts. While handbook provisions must be complete (in the sense that they adequately addresses the policy in question), they need not deal with all possible policy applications.
An employer must use common sense, decide what needs to be published and rely on its view of the workforce’s ability to understand the policies. Thus, for example, most sick leave policies require that employees contact their employer some specified amount of time prior to the start of their shift if they are going to call out sick. Some polices do not specify who the employee must contact because, given the nature of the operation, the employees know (or should know) whom to call. While most policies require an employee to contact his or her supervisor or the human resources department, an over-drafted policy might contain contingencies regarding whom to contact when the supervisor is not available. While there is nothing per se improper in addressing these contingencies, the handbook’s function is diminished if all of the policies attempt to address all of the contingencies.
Another common drafting pitfall is inconsistency. Very often, employee manuals are an amalgamation of policies that develop over time. It is important to ensure that the manual reads as a cohesive whole, both in style and substance. A related drafting pitfall is the failure to maintain “tone” in the manual. While the manual’s tone undoubtedly will vary with the employer’s intended goal, an employer should ensure that the tone is consistent (regardless of goal). Moreover, an employer should consider avoiding (or tempering) the negative, technical or overly formal tone found in many manuals. The manual should be read from the employee’s perspective. It should be easy to read and convey a supportive tone.
Finally, some employers fail to include verification or acknowledgment pages in their handbooks. The manual should contain a page, which is signed by the employee, stating that the employee has received, read and understands the manual. This page should also contain stock language that all employment is at-will and that the employer retains the right, in its sole discretion, to modify, alter or amend the handbook at any time.