Protection From Day One: The Importance of Employee Handbooks - February 2016

by Jeffrey D. Wilson

在我法学院的第二年, one of my classmates was hired for a summer position by a prominent law firm. 就在她新工作开始的前几天, 她不好意思地走近我问, “当我开始工作时会发生什么?当我问她是什么意思时, she replied, “第一天, 我到办公室后会发生什么? 我有桌子吗? 他们有办公用品吗? 有人能告诉我我在做什么吗?” It was then I realized that my insanely intelligent and multi-degreed friend had never held a job outside of working as a teacher’s aide, 所以她没有参照系.

I have no doubt the firm supplied her with a desk filled with office supplies, 最有可能的是, 一份员工手册.

While this is an extreme case, many new employees are not sure what is expected of them. Sure, 他们知道他们需要准时，而且, hopefully, 对他们的职责有大概的了解吗, 但是每个组织都有自己的内部文化, rules and expectations (such as dress and vacation policies) that take time to convey and learn.

其中许多规定不仅仅是为了员工的利益, but they also provide the employer with legal protection against future lawsuits. Some federal and state laws require that certain legal information be posted in employee common areas. Additionally, employers can voluntarily provide certain notices and policies that may later be used to defend against potential legal claims. 通过将所有这些规则和政策放在一个精心起草的, 更新和分发员工手册(或手册), an employer can impart important information to new hires while simultaneously providing information that could save the organization hefty legal fees in the long run.

Every handbook should address the following areas, among others:

1. Employment-at-Will通知. 在最近的案例中 Bahta v. 万丽酒店运营公司., No. 1:15-cv, 2016.S. Dist. LEXIS 10685, at *14 (E.D. Va. Jan. 27, 2016), a federal court in Virginia threw out a terminated employee’s breach of contract claim against her former employer in part because the employer’s handbook contained language affirming that the employment was terminable at-will and that nothing in the handbook was intended to create a contract.

1. “平等就业机会”(EEO)声明. 每本手册都应该有, 作为反歧视政策的一部分, an EEO statement confirming the employer’s commitment to provide equal opportunities to all employees and applicants for employment without regard to race, color, religion, sex, 国家的起源, age, 残疾或遗传. Employers can avoid being liable for any discriminatory actions if they can show that those actions are contrary to the employer's good faith efforts to comply with Title VII. In EEOC v. U.S. 干洗店. Corp., 24 F. Supp. 3d 782, 791 (S.D. Ind. 2014), the court stated that having a written EEO policy affirming the employer’s commitment to equal employment can be used as evidence to show a good faith attempt to comply with Title VII.

1. 性骚扰政策. 和歧视一样, an employer may also be held liable for any sexual harassment committed by its supervisory personnel. However, 在没有不利雇佣行为的情况下, 比如终止合同, 被骚扰的员工被起诉了吗, the employer can avoid liability if it can prove (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Faragher v. 博卡拉顿市, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293 (1998). The best way for an employer to demonstrate reasonable care is to create, disseminate and enforce an effective anti-harassment policy with a complaint procedure. By placing this policy in your handbook and requiring your new employees to read it, 你可以从第一天起就保护好自己.

1. “权利保留”/“利益免责”条款. Each handbook should have a section where the employer affirms that it has the right to revoke, 暂停或修改任何保单, benefit, 自行决定计划或程序. 正如法院最近在 Romstad v. City of Colo. Springs，民事诉讼编号. 14-cv-3508-CMA-CBS, 2015.S. Dist. LEXIS 105239, at *9 (D. Colo. Aug. 10, 2015), such disclaimers are additional evidence proving that handbooks are not employment contracts.

1. “安全港”政策. Determining whether an employee is exempt under the Fair Labor Standards Act (FLSA) can be a difficult undertaking. While there are a few permissible reasons for “docking” or deducting from an exempt employee’s pay, you could waive the employee’s exemption by making an improper deduction. The FLSA, fortunately, allows employers a “safe harbor” if they have a written policy prohibiting improper deductions and providing a complaint mechanism for any related grievances. Of course, the employer must also make a good faith effort to uphold the policy and return any improper deductions.

While every employer should consider the above policies and notices to be mandatory, there are many others that should be in every handbook – such as those covering attendance, dress, discipline, 药物滥用，甚至哺乳期母亲. 雇主如何处理这些问题, 比如度假和使用社交媒体, 可能和每个组织的文化一样不同和独特. By creating a comprehensive employee handbook (and regularly updating it), employers can manage their employees’ expectations while at the same time taking proactive steps to shield themselves from costly future litigation.

If you have any questions or concerns about employee handbook policies, 请联系Pender的律师Jeff Wilson & 科沃德:(757)502-7341或 jwilson@kgfascist.com.