Let's be honest – no one gets excited about spending time or money working on their employee handbook. Many employers think that their ten-year-old handbook is fine, and they take the approach of "if it ain't broke, don't fix it." Right? Wrong. I can almost promise you that something in your handbook is broken – and you just don't know it – yet.
Employment laws continue to change and evolve. Your organization continues to change and evolve. If you have not updated your handbook to meet those changes, then you may be in peril.
Having overhauled a dozen handbooks just since the pandemic began, here are my top 10 issues that I commonly see with employee handbooks that can become problems if not addressed:
- Does your handbook expressly prohibit discrimination based on sexual orientation and gender identity? It better following the Supreme Court's 2020 decision in Bostock v. Clayton County that brought sexual orientation and gender identity under the protections of Title VII.
- Do you give light-duty accommodations for employees who suffer workplace injuries so they can still work? If so, then you may consider providing the same type of light-duty accommodations for pregnant employees, as well as expressly addressing pregnancy accommodation in your handbook.
- Do you pay employees for short-term absences related to things like jury duty and bereavement but not for short-term military service? If so, then you may be violating federal law.
- Does your handbook state that employees who do not return to work at the end of their 12 weeks of FMLA-protected medical leave (or after any arbitrary period of time) will be automatically terminated? I hope not, because federal law may require you to give the employee additional unpaid leave as a reasonable accommodation for a disability.
- Can you prove that every single one of your employees received a copy of the employee handbook? If not, then you may have a hard time defending a sexual harassment lawsuit when the plaintiff says that he/she never received a copy of your harassment policy and/or procedure for reporting sexual harassment.
- Do you have employees working remotely, or otherwise, outside of the state(s) where you typically conduct business? Then you better be sure that your policies and practices comply with the laws of those states, too, which may require policy addendums in some instances.
- Does your handbook promise progressive discipline (e.g., three strikes and you're out) that you do not follow? This could be a breach of contract in some states or used against you as evidence of unlawful discrimination under some circumstances.
- Does your employee handbook prohibit employees from discussing their wages and other terms of their employment with other employees or third-parties? If so, then you may have already violated the National Labor Relations Act, which, by the way, applies to both unionized and non-unionized employers.
- Do you have a policy related to nursing mothers? Federal law and some state laws require employers to give a nursing mother a time and place to express breast milk.
- Finally, has your handbook kept up with recent changes brought on by the Covid-19 pandemic? I think we can all agree that, for better or worse, the pandemic has changed how and where people work. Employers more frequently use policies for remote working, mandatory vaccinations, flexible paid time off, and other things that were not given much consideration only a few years ago. Some of those policies which have been adopted "on the fly" over the past months and years may need to be incorporated into your handbook.
Yes, I know – employee handbooks are not exciting. But an updated, accurate, and legally compliant handbook provides an important opportunity to communicate with employees and avoid misunderstandings and disputes, as well as protecting the organization if a dispute arises. But having a legally deficient handbook can, in some instances, be worse than not having one at all. Governmental agencies are out in force, and employment lawsuits are on the rise. So, if your employee handbook predates the pandemic, then it's probably time for a checkup.
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