EMPLOYER HANDBOOKS, POLICIES AND PROCEDURES 2014 VEC EMPLOYER CONFERENCE BOARS HEAD INN AUGUST 6, 2014 JOHN M. BREDEHOFT KAUFMAN & CANOLES, P.C.

HANDBOOKS, POLICIES AND PROCEDURES: Courts and administrative agencies are interested in all three The Courtroom Of the Future is here in the present Handbooks are for general distribution Policies should be well-established but may not be given to line employees Procedures – what really happens! EEOC’s first set of questions Variation between policies and procedures can create an inference of lack of candor

EMPHASIZE THE POSITIVE Employees seldom realize all the benefits available to them, or all the costs the company incurs on their behalf Emphasize the many, many ways that an employee can bring her or his concerns or complaints to the attention of the organization Include what you need, based on your organization’s specific mission and operations. Dress Code, Tattoo Policy, Anti-Nepotism, Shift Differentials.

WAYS TO LIMIT EMPLOYER LIABILITY What are the essential qualifications for every position? (ADA) What are employees authorized to do “within the scope of their employment”? What is the organization’s formal position on important issues?

1.MISSING THE MANDATORY POLICIES Family and Medical Leave Act Uniformed Services Employment and Reemployment Rights Act Different from mere notification to employees of their rights EEOC poster

2. MISSING THE “ALMOST REQUIRED” POLICIES Policy against discrimination, harassment, and retaliation Policies on vacation time // paid leave time // leave of absence Decide whether severance pay will be a general policy Decide whether “open door policy” will be in effect Decide whether you are subject to HIPAA training and compliance Are you a federal contractor or subcontractor?

3.MISSING THE “WIGGLE ROOM” The point of a handbook is to set employee expectations in the ordinary case, not to provide for the one-in-ten-thousand event. Reserve the right to act. Reserve the right to change without notice New offenses are being imagined all the time New protected categories are being created all the time The Laundry List problem The Missing Category problem (first gained prominence in 1990 with ADA) It is impossible to be exclusive

4.INCLUDING THE WRONG THINGS “This handbook is not a contract.” Do you know why? (Colonial Williamsburg Foundation) But sometimes we WANT a contract Confidentiality provisions – if important, make a contract Non-competition agreements – if important, make a contract (Saks Fifth Avenue)

5. DO NOT OVERPROMISE Employees hear what they want to hear (just like everyone else) Regular raises, quarterly evaluations, etc., may not be practicable Vague and well-meaning assurances can and will be misinterpreted “We will be fair and reasonable” “We are all a family” (“It was you, Freddo!”) Avoid words that suggest employment is not terminable at-will “Probationary” vs. “Permanent” employee, or the words “tenure” or “security”

6. THE “SEXUAL HARASSMENT” TRAP First widespread “almost-mandatory” policy Nothing special about “sexual” harassment The perils of allowing non-lawyer employees to make legal determinations Your policy is “zero-tolerance.” Do you know why? (City of Boca Raton) Do you know what it means?

7. THE “PROGRESSIVE DISCIPLINE” TRAP Almost every handbook has a “progressive discipline” procedure Employees often interpret progressive discipline as a substantive right, not a procedure “Progressive Discipline” never means “one free bite at the apple”

8. LIVING IN THE 1980S Monitoring of employee s, Internet use, and all computer use is perfectly permissible – but the employee must be told they have no privacy interest in these modes of communication A “social media” policy is highly desirable – pace the National Labor Relations Board Require employees to comply with the law at all times: including no texting, no hand-held telephones while driving, and the like (Fairfax case)

9. “THE DOUBLE-SECRET POLICY/HANDBOOK” The only thing worse than having no handbook or policy is having one and not following it. Line managers must be trained on the handbook, and training refreshed. Employees must have the handbook and execute a receipt and acknowledgement – missing acknowledgements are ubiquitous. On line policies are a good idea; just ensure they are current and any change is acknowledged by employees – and then follow up.

10.TAILOR THE POLICIES TO YOUR COMPANY Handbooks downloaded from the Internet are often designed for 100,000- employee companies doing business in California and Guam Be as short and as simple as the situation of the company will allow Remember, the purpose of handbooks, policies and procedures is to ensure the smooth running of the organization, with happy employees who know what is coming.