1. EMPLOYEE HANDBOOKS Charles C. High, Jr. and Clara B. (C.B.) Burns
Kemp Smith LLP, El Paso

2. Pros and Cons
Gives employees a general idea of what to expect
Lessens burden on employer of informing employees
Assists supervisors and managers in being consistent
Reinforces compliance with laws and policies that limit employer liability

3. Pros and Cons
Having a handbook leads to employee expectation that it will be followed
Failure to follow becomes suspect in the eyes of a jury
Changes can have negative impact on morale

4. Contents
Varies depending on size and manner of doing business
Key purpose is to memorialize company’s existing policies
Ask yourself: Does this policy provide a new hire with a realistic picture of how things work here?

5. Contents
A handbook should not tell supervisors how to manage employees
The focus should be on communicating information, not instructing managers and supervisors

6. Introduction to Company
Can be helpful to new employees
Can also give history, mission, company growth, etc.
Be careful with language/photos
“young and energetic”
Photos of founders/officers
Can be used against company in discrimination cases

7. Introduction to Company
Avoid absolutes
“At XYZ Company all employees are treated with respect” vs. “At XYZ Company our goal is to treat all employees with respect”
Allows company to explain to a jury that employee respect is always the company’s goal even when appears otherwise

8. Disclaimers
Are absolutely necessary
Not a contract of employment
Can be modified, revised or changed at any time
Right not to follow depending upon circumstances
If any provision inconsistent with state law, will follow state law

9. EMPLOYMENT STATUS
Vast majority of states follow employment at-will so it should be stated
Make clear that no one has the authority to alter an employee’s at-will status unless it is in writing and signed by a designated company official

10. EMPLOYMENT STATUS
If have a probationary or orientation period, make clear that completion does not alter at-will status
Check state law on disclaimers (In South Carolina it must be in underlined capital letters on first page of document and signed by employee)

11. Common Policies
Promotions
Workweek, workday
Exempt, non-exempt
Overtime
Payroll, corrections

12. More Common Policies
Leaves of absence
Dating and workplace romance
Attendance requirements
Workers’ compensation
Vacation, PTO, sick leave

13. Still More Common Policies
Workplace violence
Business ethics
Employee monitoring and privacy issues
Dress code
Use of system

14. Even more….
Open door problem solving
Arbitration of disputes
Confidentiality
Social media

15. ANTI-HARASSMENT POLICY

16. ANTI-HARASSMENT POLICY
Cover all federal protected categories as well as applicable state requirements
Prohibit retaliation
Reporting procedure, investigation, and consequences

17. ACKNOWLEDGEMENT
Most states accept electronic signatures
But must be sufficient to rebut denial of receipt and acceptance
Include: received, understood; not a contract; at-will; agree to read and follow

18. Employment At Will Disclaimers
Policies Under Attack
Employment At Will Disclaimers
Section 7 rights under NLRA – can’t require employee to waive rights
“I agree that the at-will relationship cannot be amended, modified, or altered in any way.”

19. Accepted language (at least in 2012(
Policies Under Attack
Accepted language (at least in 2012(
“No manager, supervisor or employee has any authority to enter to an agreement for any specified period of time or to make an agreement for employment other than at-will. Only the president of the company has the authority to make any such agreement and then only in writing.”

20. Confidentiality of Investigations
Policies Under Attack
Confidentiality of Investigations
Blanket rules that prohibit discussions of ongoing investigations violates Section 7 rights to engage in protected concerted activities.
Compliant language: “in some circumstances” confidentiality is necessary and disciplinary action may result if there is a failure to maintain confidentiality

21. Confidentiality of Company Information
Policies Under Attack
Confidentiality of Company Information
Policies that prohibit employee discussion of wages, personnel information or financial information are generally considered overbroad
Acceptable policy: prohibit discussion of “private or confidential” information, followed by examples, such as trade secrets, private info of a guest or customer

22. Policies regarding Communications
Policies Under Attack
Policies regarding Communications
Problem policies:
“Making false, vicious, profane or malicious statements” concerning employer or employees
“Negative comments” about manager, or requiring employees to represent employer in a “positive or professional manner”
“Damage the company, defame any individual or damage any person’s reputation”
No-gossip policies

23. Policies regarding Communications
Policies Under Attack
Policies regarding Communications
Acceptable policies:
Prohibiting “abusive and profane language,” “harassment,” verbal mental and physical abuse
Prohibiting conduct injurious, offensive, threatening, intimidating, coercing, or interfering with employees or customers (promotes civility and decorum in the workplace)

24. Policies Under Attack Email Policies
Purple Communications – Employees are presumptively permitted to use employer systems during nonwork time for Section 7 activities if employer gives employees access to its systems

25. Policies Under Attack Social Media Policies Unacceptable:
“Don’t release confidential guest team member or company information”
“When in doubt about whether the information you are considering sharing falls into one of the above categories, DO NOT POST. Check with employer or legal to see if it’s a good idea.”

26. Policies Under Attack Social Media Policies More unacceptable:
Requiring posts to be “completely accurate and not misleading” – overbroad because employees are allowed to criticize employer policies as long as not maliciously false
“Communications with co-workers … that would be inappropriate in the workplace are also inappropriate online” – too ambiguous
“Think carefully about friending co-workers” – overbroad because discourages communications

27. Policies Under Attack Social Media Policies More unacceptable:
Requirement to report “any unusual or inappropriate internet social media”
A policy that prohibited discussion of “legal matters including pending litigation or disputes”
A policy that discouraged social media topics that “may be considered objectionable or inflammatory – such as politics or religion”

28. Policies Under Attack Social Media Policies
Saving Clauses – “social media policy to be administered in compliance with applicable laws and regulations (including Section 7)” – insufficient to cure an overbroad policy

29. Practical Pointers
Handbooks aren’t one-size fits all
Have handbook periodically reviewed for updates, compliance
If maintained electronically and acknowledgments are by electronic signature, make sure you can prove the employee signed

30. Thank You! EMPLOYEE HANDBOOKS
Charles C. High, Jr.
and
Clara B. (C.B.)Burns
Kemp Smith LLP, El Paso