|
Why
are written policies important?
Are
we required to have written policies?
Does
every organization need written policies?
Will
we create a contract if we have written policies?
Supervisory
policy manual vs. employee handbook
What
policies should we include?
Is
the Job Ever Done?
The
debate has heated up again between HR experts who argue that
written policies are a necessity and employment attorneys who say
written records are dangerous and can be used against you in a
lawsuit. So who's right and what does it mean for you?
When was the last time you reviewed your organization's policies?
If you're like many employers, writing or updating policies is at
the bottom of a lengthy "to-do" list. And, you may even
question the value of having written policies because of the
apparently conflicting advice concerning their usefulness. On one
hand, many HR experts advocate having written policies as a way of
communicating your organization's values and practices to
employees. Alternatively, a growing number of attorneys are
warning their clients that poorly drafted policies may land you in
court. So, who should you believe? The short answer is both
groups. Upon closer consideration, these positions are not
contradictory. Well-written policies can both serve as an
effective communication device and help you stay out of court, or
at least give you a better chance of prevailing.
The
following questions and answers will help define the underlying
issues and make clear why written policies that are carefully
developed, updated, and applied are an effective tool that you
need.
Why are written
policies important?
Sound employment policies provide the framework within which an
organization governs its employee relations. A policies and
procedures manual guides both managers and employees as to what is
expected and can prevent misunderstandings about employer policy.
In addition, supervisors and managers are more likely to
consistently apply policies that are clearly communicated in
writing.
It is true that written policies, like any record, can be used
against an organization in a lawsuit. Poorly drafted policies
often become the main evidence presented when employees allege
that the policies were in fact a contract that the employer
violated. However, policies that are carefully written so as not
to be contracts actually should protect against these claims and
not be a problem. (See number 4, below.) In addition, carefully
written policies can be used to illustrate your commitment to a
positive work environment and nondiscriminatory employment
practices. (See number 3, below.)
Are we
required to have written policies?
Although written policies in general are not legally required,
certain policies may be required, or at least be considered an
important component in helping employers establish good faith
compliance with federal and state law. For example, the Supreme
Court has indicated that employers may protect themselves against
liability for sexual harassment by having clearly articulated
policies against sexual harassment that include effective
complaint procedures. In addition, the Family and Medical Leave
Act requires covered employers to provide written information
regarding employee rights and employer obligations under the Act.
Similarly, certain federal contractors must have written equal
employment opportunity policies. And finally, many state laws
require written harassment policies and policies informing
employees about compensation issues.
Does
every organization need written policies?
As a general rule, every employer, except maybe those with fewer
than 15 employees, should have written policies. Employers with 15
or more employees are covered by federal discrimination laws (such
as Title VII and the Americans with Disabilities Act) and most
state discrimination laws. Written policies are a good starting
point to show your commitment to nondiscriminatory employment
practices. For example, a performance review policy can show the
job-related criteria used to evaluate employees and any safeguards
used to ensure the process is conducted in a fair and objective
manner.
Smaller employers should at least consider creating a handbook
since it is likely they already have some policies in writing. For
example, employment offer letters may explain vacation and sick
leave accrual while other items, like a posted memo, may outline
pay procedures. Thus, to ensure distribution to all employees,
even the small employer is well advised to compile these memos
into a handbook that is given to every employee.
Will
we create a contract if we have written policies?
The simple act of putting your policies in writing should not
create a binding contract if the policies are written as
guidelines that explain generally or typically what your
requirements are and how employees normally will be treated.
However, you can create a contract by using language that conveys
rigid rules that must be followed exactly as written in all
circumstances.
Therefore, you should build flexibility into your wording and
steer clear of any promises that could be interpreted as a
contract. Your policies should not, for example:
-
State
that the organization will "only" or
"always" do something or "must" act in a
particular way;
-
Describe
employees as "permanent";
-
State
that employees will be terminated only for "cause";
-
Make
promises of job security; or
-
Use
all-inclusive lists, such as in disciplinary procedures or
work rules.
Instead,
you should use terms such as "generally,"
"typically," "usually," and "may" so
that managers have flexibility in interpreting and applying the
policies. In addition, you should specifically retain management's
right to update, change unilaterally, and implement all policies
as the organization sees fit. Finally, you should include a strong
"at-will" statement that clearly specifies that all
employees (who do not have contracts or collective bargaining
agreements specifying otherwise) may quit at any time and for any
reason or may be terminated at any time and for any reason.
Supervisory
policy manual vs. employee handbook:
What
is the difference between a supervisory policy manual and an
employee handbook? Which should we have?
A supervisory policy manual generally is intended as a guide for
managers and supervisors and contains information that they need
to implement the organization's policies. Thus, a supervisory
policy usually provides a general statement of policy followed by
several comments that instruct managers how to apply that policy.
In contrast, an employee handbook is designed for broad
distribution to all employees. It is typically intended to provide
general information about the organization's practices, benefits,
hours of work, pay policies, and work rules. It usually does not
include information about supervisory procedures.
At a minimum, you should have an employee handbook that explains
your policies to employees. Many organizations, especially as they
grow, also have a supervisory policy manual to ensure that their
managers understand how to implement the policies. As a practical
matter, having supervisory instructions may be especially prudent
in today's legal climate where any inconsistent application of
policy can result in a discrimination claim.
What
policies should we include?
In choosing policies to include, you should consider the following
points:
-
The
culture of your organization and its recurring issues or
problems;
-
Any
memos on policy topics (such as vacation and holiday
schedules) and past practices (i.e., what you have done in the
past to address a particular employee relations issue); and
-
The
HR practices followed by other organizations in your industry
(such as vacation lengths and leave allowances).
Most
employers develop policies on the following topics:
-
at-will
employment,
-
pay
procedures,
-
benefits
(including any paid vacation, sick leave, and holidays, and
other forms of leave),
-
meal
and rest breaks,
-
personal
conduct (work rules),
-
attendance
and punctuality,
-
sexual
and other forms of harassment,
-
equal
employment opportunity,
-
disciplinary
procedures, and
-
termination.
In
addition, many employers include policies on performance
appraisals, smoking, safety procedures, appropriate dress and
appearance, use of communications systems (including the proper
use of telephones, computers, e-mail, and Internet access), and
drug and alcohol use.
Remember, your policies should be considered dynamic, not static.
You may need to add to them, revise them, and even delete them as
your organization grows and changes.
Is the Job Ever Done?
Even when you're finished drafting or updating your policies, your
job is not complete. The policies should be reviewed by your legal
counsel to ensure that they comply with state and federal
employment law before they are finalized and distributed to
employees. Further, you should review the policies on a regular
basis to make sure they continue to comply with applicable law and
the needs of your organization. New laws, regulations, and court
cases can affect both policy language and how you implement the
policies. Most experts suggest a thorough review of your policies
at least once a year and the use of a notification service or
publication to keep you posted during the interim. Finally, when
policies are introduced or revised, you should distribute and
thoroughly explain them to all employees.
Clearly written policies that are regularly re-viewed can be both
an effective employee relations tool and a good defense against
employee lawsuits. In contrast, policies that are poorly drafted
or applied can have exactly the opposite effect. They can lower
morale and become evidence against you in court. The key question,
therefore, becomes not whether to have written policies at all,
but whether you are willing to invest the necessary amount of time
and effort to make sure they are carefully drafted and properly
applied.
|
Rules
of Employment
