There are very few written policies that are required by law to be provided to employees, but there are certain policies companies can adopt to protect themselves and reduce their liability exposures. This can either be done though a company handbook or by distributing individual policies to employees.
“Courts have said that by advising employees of certain information, the burden shifts from the employer proving something didn’t happen to the employee proving something did. That can be a significant difference in an employer’s ability to defend itself both in terms of success and cost,” says Jeffrey Dinkin, a shareholder at Stradling Yocca Carlson & Rauth.
Smart Business spoke with Dinkin about key policies that should be included in employee handbooks and what other options exist.
What are some required policies suitable for an employee handbook?
All employers are required to have sexual harassment policies that clearly state to whom employees should report complaints. More than one person should be designated, but if that’s not possible, there are outside resources to which you could direct them.
For companies with five or more employees, if the company has leave policies, policies regarding pregnancy disability leave must be included. As a note, under recently enacted legislation there must be continued employer health insurance contributions during the period of pregnancy disability leave for up to four months. The California Family Rights Act also allows 12 weeks of baby bonding leave, with continued employer health insurance contributions now also being required.
Employers with 50 or more employees are covered by the Family and Medical Leave Act, which must be honored when you learn an employee is eligible for family medical leave, and requires a related employer policy.
Also, a new law dictates that employees paid in commissions need to be provided a clearly written commission agreement that describes how commission is calculated, earned and paid. It needs to be signed by, and a copy given to, the employee.
What else could an employer include in an employee handbook?
Employers should have a policy that requires employees to accurately record all time worked (the start and stop times), as well as the start and stop time for meal periods. The policy should clearly prohibit off-the-clock work. It is important to also address meals and rest periods provided by the company.
Technology and communications policies are increasingly necessary. It’s important that an employer indicate that the materials stored and communicated on devices owned by the employer belong to the employer, and it has the right to review and monitor those communications at its discretion.
There’s a lot of attention on bring-your-own-device workplaces. Employers need to communicate that work-related mobile activity is not private and information can be retrieved from a personal device including when the employee exits the company.
Is an employee handbook required?
Companies don’t need to have a handbook, but having one allows them to set forth some essential policies and employee rights and obligations that should be observed. Handbooks enable everyone to have a reference to their rights and obligations.
What will suffice as notice in place of a handbook?
You can provide individual policies. Employers often provide new hires with the policy regarding sexual harassment, or there can be a separate meal and rest period policy. There is other information that must be provided to employees through permanent postings at the workplace or handouts.
Who should assemble the handbook?
An employment attorney is a good resource. He or she will typically have a model handbook that can provide a starting point that’s then customized to suit the employer’s needs. The chamber of commerce or an HR consultant have similar resources.
However, a big part of employers preparing a handbook is for them to become aware of their obligations and rights so they might better order their employment policies to protect themselves. It’s a good education tool and a chance for an employer to order its thoughts on how it wants to treat its workforce. ?
Jeffrey Dinkin is a shareholder at Stradling Yocca Carlson & Rauth. Reach him at (949) 725-4000 or email@example.com.
Website: Find Jeffrey Dinkin’s profile at www.sycr.com/Jeffrey-Dinkin.
Insights Legal Affairs is brought to you by Stradling Yocca Carlson & Rauth
As discrimination and harassment claims continue to rise, an up-to-date employee handbook has become a practical and affordable first line of defense for beleaguered employers. Between legal costs, court costs and settlement fees, an employer’s tab for a single claim now averages $100,000 to $250,000.
“A well-written handbook not only communicates the company’s policies and procedures, it nips problems in the bud by establishing the framework for a professional work environment,” says Elise Vasquez, labor and employment partner at Ropers Majeski Kohn & Bentley PC.
Smart Business spoke with Vasquez about the all-important role of an employee handbook in preventing lawsuits and claims.
What are the traditional components of an employee handbook?
Every handbook should start with a statement from the company, which establishes the expectations for a professional work environment where people are treated with dignity and respect, and violations won’t be tolerated. Other bare bones policies include:
• Equal employment opportunity and anti-discrimination — Make sure your policy covers all protected classes including disabled workers and applies to promotions and compensation as well as hiring practices.
• Employment verification and eligibility (I-9) — Require new hires to provide proof of their eligibility to work in the U.S. within 72 hours.
• Anti-harassment — Prohibit all forms of workplace harassment and retaliation, not just sexual harassment.
• At-will employment — Make it clear employment is not for a guaranteed time period and can be terminated at any time by the employee and employer.
• Family and Medical Leave Act — A must-have policy for companies with 50 or more employees.
• Maternity/paternity leave — Your policy should cover all California laws that pertain to disability pregnancy and paternity leave.
• Written acknowledgement and right to revise — Reserve your right to revise the handbook and include a receipt, which states that the employee has received, read and understood the material.
Should employers include other policies based on recent changes in the law?
Employers bear the burden of proof in wage and hour disputes. Employers, therefore, need to include a break and meal period policy for all their non-exempt workers consistent with the most recent California Supreme Court decision in Brinker Restaurant Group v. Superior Court of San Diego.
Another good practice is to include policies governing employee sick time, vacation, jury duty, and other forms of paid or unpaid leave.
Lastly, a policy setting forth the unacceptable or acceptable use of social media during work hours — especially on company-issued technology — is recommended and ensures compliance with California’s Social Media Privacy Act.
What are the best practices for enforcing the rules?
Employers must have systems in place to enforce the mandatory anti-harassment and discrimination policies and complaint procedures. Likewise, employers should not impose non-mandatory policies and procedures they do not intend to follow.
Inconsistent enforcement and subjective decisions will favor the litigious employee. Close loopholes, clarify gray areas and ensure reliable application by providing complementary policy training for employees and managers. Managers play a key role by modeling appropriate behavior and consistently enforcing the policies and procedures.
How often should employers review and update their handbook?
Employers should revise their handbooks annually at the end of the year. This ensures compliance with any new laws moving into the new year. Should you need to revise a policy sooner, notify employees via a companywide email and, where possible, include a copy of the policy with an acknowledgement in employees’ paychecks. While no policy is foolproof, an employee handbook is a cost-effective way to reduce risk when combined with open communication, consistent enforcement and appropriate training.