A Lay-Up in Limiting Liability: How Employers Can Minimize Exposure by Keeping Workplace Policies Updated
Employee Handbook with Glasses

Whether your organization has five or 5,000 employees, having a well drafted and frequently updated employee handbook is a critical resource to minimize potential liability in the workplace. For current employees and supervisors, employee handbooks provide a comprehensive overview of the organization’s practices, policies, procedures, and rules. For management, employee handbooks ensure consistent compliance with and enforcement of the organization’s rules and expectations for employees. Employee handbooks also demonstrate (often as “Exhibit A” in litigation) that the organization complies with and adheres to all applicable laws and regulations. For human resources personnel, employee handbooks often provide much-needed guidance in handling complex issues such as leaves of absence, complaints of discrimination/harassment, and employee benefits. In addition, employee handbooks serve as an introduction to the organization’s operations and culture for new hires.

But to be effective tools for these purposes, employee handbooks cannot simply be printed off the internet or stuck in a drawer and forgotten about.  In general, employers should review and revise their employee handbooks at least annually to account for changes in local, state, and federal laws. For example, as more states adopt their own paid and unpaid Family and Medical Leave Acts and related programs, handbook policies governing such leaves must be updated accordingly. Similarly, trends in litigation, major state and federal court decisions, changes in technology, and shifts in “best practices” can also necessitate policy changes. Similarly, changes in administrative or regulatory guidance, or newly recommended procedures may render certain policies obsolete or promote others to critical.  

For example, the “Me Too” movement has resulted in a renewed focus on anti-harassment (including sexual harassment) and non-discrimination policies to ensure sufficient reporting, investigation, and anti-retaliation protocols are in place. These policies send a clear and important message to employees and managers alike about the company’s expectations for appropriate workplace conduct and the consequences for non-compliance.  In the event of a claim against the organization, such policies also reflect that the organization takes its obligations seriously.  Social media policies are similarly becoming a necessity in this day and age, when a single unwise employee post can subject the organization to a litany of negative publicity. Additionally, unexpected changes in workplace operations or incidents of employee misconduct may require adjustments to prior policies that were drafted under different circumstances.

Once your organization has an up-to-date comprehensive employee handbook in place, the next steps involve administration and training. For example, management should adhere to its published policies in corporate decision-making and employee relations. Handbook policies governing workplace conduct and expectations for employees should be clear and unambiguous so employees and supervisors can readily understand how to comply with them. Guidance directing employees who have questions or issues to appropriate points of contact and internal or external resources is also important. Additionally, it is equally important to properly train your employees, particularly managers and supervisors, about their roles and responsibilities in the context of such policies.  Finally, ensuring that each employee acknowledges written receipt of the employee handbook and the obligation to adhere to the policies contained within it is crucial. It is not enough to do so only at the beginning of employment -- new written acknowledgements should be obtained from employees every time the employee handbook is revised or updated.

Further, to effectively reduce potential liability and provide the other types of benefits outlined above, employee handbooks must reflect your organization’s specific logistics, operations, and policy goals. Handbooks are not “one size fits all,” and simply printing one off the internet or copying one from another organization will not sufficiently protect your company. In fact, doing so often has the opposite effect -- creating more liability by invoking inaccurate and inapplicable laws, policies, and requirements. To this point, companies often overlook the importance of having a handbook that is drafted specifically for them. This is especially true if your organization operates in multiple states, as the laws and regulations governing policies such as paid time off, family and medical leave, wages and hours, employee benefits, and cannabis use can differ significantly from jurisdiction to jurisdiction. Likewise, some cities and states also require employers to provide certain information to employees in a written policy, so it is critical that organizations understand and comply with these requirements.

In the two-plus years since the COVID-19 pandemic began, there have been numerous changes in law and best practices that may render outdated handbooks non-compliant. Informal, inaccurate, unwritten, and outdated handbook policies create significant risks for employers, and organizations without clear, comprehensive, up-to-date policies are leaving themselves open to potentially significant liability on a variety of employee claims.  In light of the above, employers should review their existing handbooks to determine if any updates are necessary. Our Labor and Employment attorneys are dedicated to assisting employers in ensuring that they have the necessary policies in place to comply with applicable law and avoid unnecessary employee-relations issues and claims. We have up-to-date handbook templates, policies, and other useful resources available.

Please contact any of our  Labor and Employment Law attorneys for more information.

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Alerts, commentary, and insights from the attorneys of Pullman & Comley’s Labor, Employment Law and Employee Benefits practice on such workplace topics as labor and employment law, counseling and training, litigation, union issues, as well as employee benefits and ERISA matters.

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