A Handbook can be a useful tool for employers in addressing employment-related problems and defending against claims. When an employee has engaged in misconduct, the employer should review its Handbook to identify specific policies the employee has violated and follow the Handbook’s guidelines for discipline. Written warnings issued to employees for policy violations should reference the specific policies in the Handbook. If an employee’s misconduct is not addressed by a particular policy in the employer’s Handbook or there is no general guideline for discipline, the employer should consider revising the Handbook to clarify its policies and procedures.
In situations involving an employee discharge, the employer’s Handbook can be important evidence of the reason for the discharge. If any employee is discharged after being warned regarding policy violations, this information will be relevant in determining whether the employee was discharged for “misconduct connected with work,” which could disqualify the employee from receiving unemployment compensation benefits. The warnings could also be relevant if the employee claims that his or her termination was based on illegal discrimination or retaliation. The employer’s Handbook, and consistent evidence of enforcing the policies in the Handbook, will be essential evidence to show that a particular termination was based on legitimate, non-discriminatory reasons.
A Handbook is only useful, however, if the employer consistently follows the policies in the Handbook. If an employer does not equally enforce policies with all employees, this conduct could lead to liability for the employer based on discrimination. In lawsuits brought by a former employee against an employer, the employer’s failure to follow its own Handbook is often used to support the former employee’s claim of unequal or discriminatory treatment. Consistent enforcement of a Handbook, not merely having a Handbook, is an important tool for employer’s to reduce the likelihood of liability with regard to human resource decisions.
There is no one-size-fits-all Handbook. A Handbook must be tailored to reflect the actual policies enforced by each employer. For this reason, preparing or revising a Handbook requires a two-step process. If an employer has not previously prepared a Handbook, H&P can provide a basic form to start the process.
Step one is a practical review of the Handbook by the employer to ensure that each of the policies is applicable to the employer’s work environment. For each policy in the Handbook, the employer should decide one of the following actions:
Once all of the existing policies are reviewed, the employer can decide whether additional policies that reflect the practices of the employer should be added to the Handbook.
Step 2 is a substantive legal review of the Handbook by Hallett & Perrin. We will assess whether policies included in the Handbook comply with applicable law and are internally consistent. If necessary, Hallett & Perrin will recommend revisions to these policies and can prepare revised policies. We may also recommend that policies be removed or added to the Handbook and can provide explanations regarding these recommendations.
Hallett & Perin can conduct an initial review of a Handbook that will evaluate key policies addressing employees’ rights under federal statutes. To request an initial review, please contact Molly Cowan at mcowan@hallettperrin.com.
