Although they take a little bit of work, employee handbooks can make human resources management less stressful. Consider the before and after handbook answers to the following inquiries:
1. My grandmother died last night. I have to go to the funeral tomorrow evening in Florida.
Before: Gee, that’s terrible. I don’t know if I can give you the time off. I’ll have to get back to you.
After: I am so sorry for your loss. Under the policy in our handbook, you are entitled to two paid days off in connection with the death of an immediate family member.
2. Supervisor: Where were you last Friday (the day after Thanksgiving)? Employee: I wasn’t feeling too good, so I decided not to come in. Take it out of my sick pay.
Before: Supervisor: I don’t know if I should do that. Were you really sick? Employee: Yeah, I really was.
After: Supervisor: I’m sorry. Under our handbook policy, you have to provide a doctor’s note for any unscheduled absence after a holiday. Employee: I don’t have one. Supervisor: Then, this will have to come out of your vacation pay, or go unpaid.
Proper drafting of the handbook will provide protection for the employer in employee disputes:
- The employer has the right to insist on agreement to an arbitration clause as a condition of employment.Lagatree v. Luce, Forward, Hamilton & Scripps, 74 Cal.App.4th 1105, 88 Cal.Rptr.2d 664 (1999). But, if you wish to require arbitration, you must have employees sign a page containing the arbitration clause, and include language informing them that they are giving up their right to go to court. Written acknowledgment of receipt of a handbook containing an arbitration clause is not a knowing agreement to arbitration. Nelson v. Cyprus Bagdad Copper Corp., 119 F. 3d 756 (9th Cir. 1997).
- Be sure to include a statement that the employer’s technology resources should be used only for company business, and that employees have no right of privacy with respect to communications through that technology. This will avoid invasion of privacy claims, and make sure that such communications may be used in any disputes with the employee. Such clauses have even been invoked to prove waiver of the attorney-client privilege for communications with an attorney from work. Holmes v. Petrovich Development Co., 191 Cal. App. 4th 1047, 119 Cal.Rptr.3d 878 (2011).
- Be sure to include an effective complaint mechanism in your harassment policy. Under federal law, it is a complete defense that the employer exercised reasonable care to prevent and correct the harassment and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities or otherwise failed to avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Under California law, the avoidable consequences may limit the recoverable damages if (1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered. State Dept. of Health Services v. Superior Court, 31 Cal.4th 1026, 79 P.3d 556 (2003).
The few problems that some think are posed by handbooks are easily answered:
- It’s too much work. There is work involved, but you do not have to reinvent the wheel. An employment law firm like ours can do the hard work for you.
- It will mean that we can only fire employees for good cause. But, the courts have ruled that a properly worded disclaimer will prevent such consequences. For example, in Courtney v. Canyon Television & Appliance Rental, 899 F. 2d 845 (9th Cir. 1990), the handbook stated: “As a matter of policy, Canyon is not bound by the provisions of this Handbook and may make exceptions to its administration where, at the discretion of the company, such exceptions are warranted.” As a result, the employer was not required to adhere to another statement in the handbook that an employee would receive “a counseling session and … extra training or development … to achieve acceptable job performance” before being discharged.
- We will be stuck with provisions we do not like. Employers may change their policies unilaterally, so long as they do so only after a reasonable time, and provide reasonable notice to their employees. Asmus v. Pacific Bell, 23 Cal.4th 1, 999 P.2d 71 (2000). Employees retain any vested benefits.