7 things that should never go in a handbook
November 11, 2008 by Sam NarisiPosted in: Benefits Law, Best Practices, FLSA, Special Report
Employee handbooks are supposed to protect the company. But thanks to these common mistakes, many policy manuals are a lawsuit waiting to happen.
Mostly, it comes down to the choice of wording. Phrasing policies the wrong way often causes big legal trouble when managers discipline or fire employees.
Here are seven big problems all companies need to watch out for, according to HR consultant Hunter Lott:
- Illegal overtime policies — A statement that shouldn’t appear in any handbook: “Authorized overtime will be paid at 1.5 times the regular hourly rate.” That policy is illegal under the FLSA — all OT, whether it’s authorized or not, must be paid. You can have a rule against working OT without permission and discipline or even fire someone for it, but you still need to pay them.
- Vague FMLA language — Policies on FMLA should lay out all of the law’s eligibility rules. Otherwise, employees who wouldn’t have qualified for leave may still be able to sue the company. Also, make sure you’re specific about how FMLA and paid time off intertwine. If employees are required to use FMLA and PTO concurrently, that needs to be in the handbook. If it isn’t, employees may argue in court that their 12 weeks of medical leave didn’t start until after their sick and vacation time was used up.
- Bans on salary discussions — The only logical reason for a company to ban talk about salary, Lott says, is that its pay structure is unfair and unlawful — which is a possibility employers certainly don’t want to raise. Also, such policies may run afoul of the National Labor Relations Act, which gives employees the right to talk freely about working conditions.
- Unnecessary probationary periods — Specifying that new hires are on a 90-day probation is appropriate for union or government employees, who are protected from termination in some cases. But for any other company, it doesn’t make much sense. Most employees are at-will — which means they can be fired at any time for any legal reason. Giving everyone a probationary period might negate an employee’s at-will status once the 90 days are over.
- Rules that are too personal — Lott warns against handbook statements like, “Employees are prohibited from dating co-workers.” It makes the company sound like a babysitter and creates a serious enforcement headache. Employers will get a lot more protection from a job-related policy such as: “Any relationship that affects your ability to do your job may be a valid reason for firing.”
- Salary offers that offer too much — Employees and their attorneys will try to interpret everything the company says literally — especially when it comes to money. For example, telling employees what their “annual salary” is when they’re hired could imply that you intend to pay them for an entire year, no matter what. Instead, the statement should read something like, “an annual salary of (blank), earned and paid biweekly, monthly, etc.”
- Too many details — Sometimes, listing too many specific behaviors that warrant discipline can make it difficult to discipline for other issues. For example, if a dress code includes 35 things employees aren’t allowed to wear, there’s likely to be some resistance when a manager tries to punish someone for inappropriate dress that hasn’t been explicitly spelled out.
Tags: handbook, Hunter Lott, policies
November 12th, 2008 at 11:00 am
Just a couple thoughts:
Unnecessary probationary periods: We changed the name to a 90-day orientation period and we tell all new hires that this period does not take away from the fact that our state is an at will state and termination is still the right of the employer except for legally protected areas. These 90 days also put pressure on the manager to really focus on the employee’s performance and avoid an employee working with us 9 months and have the manager complain “they have never got the job done.”
Salary offers that offer too much: Probably misunderstanding what is being said but what kind of salary offers do people in an employee handbook?
November 12th, 2008 at 1:10 pm
We put our salary bands in our handbook. Saves a lot of headache. We also put the at-will statement in there several times, particularly around our probationary (which we call an Introductory) period, anything related to discipline, and performance reviews. Also, we use “this is for informational purposes only and may not cover all examples or situations” statements throughout the handbook. One other thing to mention – if you have anything to do with company benefits listed on your website, be sure to update that whenever anything changes or at least put a disclaimer in the page. No fun having your new hire claim a benefit based on what they saw online that no longer exists! And – if you can’t or won’t enforce it – don’t have it in there to begin with.
November 12th, 2008 at 1:27 pm
I dont like probation, introductary or orientaton periods. An employee is an employee from day one, not from day 91, thats the benefit of at will.
November 12th, 2008 at 2:09 pm
We have a 90 day period for new hires. It gives us a chance to see if the new employee can actually do the job hired for and we do a performance review at the end of the 90 days, usually resulting in a raise. I like it as an employer.
November 12th, 2008 at 2:24 pm
The 90 day orientation period would also make sense if you are excluding these new employees from being immediatley covered under the Company’s progressive Employee Corrective Counseling policy.
November 12th, 2008 at 3:10 pm
Orientation period does not effect the employee feeling like they are part of the company because all of their benefits start before then. We are committed to have everyone feel part of our organization from day 1. The employees seem to expect a “probationary period” and like I stated earlier it increases the accountabiltiy to the managers to get that employee up to speed.
November 12th, 2008 at 3:49 pm
When I started, the first 90 days was an “orientation period”. Now, it is an “introductory period”, which I like – we also do an evaluation and raise at the end of 90 days. It helps the employee and the company make sure the employment is working out for everyone.
November 12th, 2008 at 5:20 pm
Think about the word probationary what is the antonym “permanent”. So if one is not probationary and becomes a permanent employee after 90 have you implied a contract and guaranteed a life time position. Far fetched you think? Maybe not. Although I choose not to use any of the terms such as probationary, permanent, etc., I much prefer introductory period.
November 12th, 2008 at 11:11 pm
[...] 7 things that should never go in a handbook By Sam Narisi Vague FMLA language — Policies on FMLA should lay out all of the law’s eligibility rules. Otherwise, employees who wouldn’t have qualified for leave may still be able to sue the company. Also, make sure you’re specific about how FMLA … HRLegalNews.com – http://www.hrlegalnews.com/ [...]
March 22nd, 2009 at 8:45 pm
Chris for president
March 23rd, 2009 at 11:38 am
My criminal record both overqualifies me and disqualifies me…that is my attempt at H/R humor.