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PSI HR Blog 10.23.17

10 Employee Handbook Mistakes Your Organization May Be Making

An employee handbook is an important communication tool between an employer and its employees and a valuable resource for setting forth workplace standards to guide employee behavior and performance expectations.

A well-written and compliant employee handbook may also be used by managers and supervisors as a guide to handle issues on a consistent basis. However, if an employer is not careful with its wording, it could be making some major mistakes that put it at greater risk of a lawsuit.

Here are 10 employee handbook mistakes your company may be making:

1. Your Handbook Lacks a Disclaimer and Creates a Legally Binding Contract

It is essential to include a clear and conspicuous disclaimer stating that the handbook does not create an employment contract or contractual obligations of any kind. An employer should always avoid using language that may lead employees to believe that their employment is not at-will and they may only be disciplined or terminated for cause. The employer should also state the handbook policies can be amended, modified or changed at any time at the employer’s discretion. All of this is extremely critical as it protects the employer’s interests and can help avoid litigation.

2. You Obligate Yourself Too Much When It Comes to Discipline

Be extremely careful when drafting disciplinary policies and do not obligate the organization to a rigid disciplinary procedure or a specific set of disciplinary steps. You should also avoid being too detailed when it comes to listing the conduct that may be grounds for discipline. The employer should reserve the right to make decisions that are in the best interests of the organization.

3. Your Attendance Policies Are Unlawful

Make sure to avoid blanket policies that impose a maximum amount of leave time before an employee is automatically terminated, or no-fault attendance policies which charge an absence against an employee regardless of the reason for the absence.

These policies can be risky because they do not take into account the employer’s obligation to engage in the interactive process under federal laws such as the Americans with Disabilities Act (ADA), and ignore the fact that additional leave can be a reasonable accommodation. They also may fail to take into account federal, state and local leave laws and employer obligations. Additionally, an employer should avoid “use it or lose it” policies regarding paid time off or vacations as these may also be unlawful.

4. Your Employees Can’t Read or Understand the Handbook

An employer may be making a huge mistake if its employees cannot read the employee handbook for one reason or another. That’s why it’s important to avoid any language barriers and make sure the handbook is written in a language most employees can understand. This means translating the handbook into another language if that language is spoken by a significant number of employees in the workplace.

An employer also needs to make sure that handbook polices are written in an easily understood manner, using everyday language and avoiding legal and HR jargon. Policies should be clear and unambiguous, and should not be subject to various interpretations. Finally, an employer should also provide training on its handbook to all employees.

5. You Failed to Include an Acknowledgment and Consent Form

One of the most important aspects of any handbook is the form employees sign indicating that they have received the handbook and that they have reviewed it, understood it and consent to its policies. This is critical because if an employer fails to include an acknowledgment and consent form, an employee can say that he or she did not receive the handbook and he or she was unaware of the policies it contained.

An executed acknowledgment and consent form can be Exhibit A in case of a lawsuit and will allow an employer to show that it had a policy, and the employee violated it. It is a good idea for an employer to obtain acknowledgments when the handbook is issued, when a new employee receives the handbook or when updates are made. An employer should be sure to maintain a record of all employee acknowledgments as well.

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Pregnant and Want a Workplace Accommodation?  Forget It:  ‘It’s Not Prison.  You Can Quit!’

Get over it: pregnant women are a fact of workplace life.

Ah, the sensitive comment of a (male) lawmaker addressing a bill proposed in South Dakota “requiring reasonable workplace accommodations during and after pregnancy, including frequent or longer breaks, modified work schedules, and private non-bathroom space for breastfeeding.”

Unsurprisingly, it was voted down.

Last I checked, besides Title VII, 18 states and the District of Columbia have laws requiring pregnancy accommodations.

About the comment above:  True, you can quit; you can always quit.  No one can argue with that.  And I wonder what this guy’s position is with respect to sexual and racial harassment — would he similarly say “you can always quit”?

Probably.

Wanna work for this guy?

The Pregnancy Discrimination Act

Anyway, let’s discuss the subject of this lawmaker’s thoughtful comment — pregnancy discrimination in the workplace, which violates Title VII — indeed, it violates the Pregnancy Discrimination Act (“PDA”) which amended Title VII.

One way of understanding the PDA is to look to the Americans With Disabilities Act (“ADA”) — there are many similarities and intersections between the two statutes, from the intent and purpose to the accommodation requirements.  As I noted here before:

“The ADA was indeed passed to prohibit employment discrimination against people with disabilities – to address the stereotypes, assumptions, myths and fears which prevented those with medical impairments or disabilities from becoming employed.

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