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Paul F. Mickey Jr. is a partner in the Employment and Labor Practice at Steptoe & Johnson LLP in Washington. He has extensive experience counseling senior management on personnel issues and litigating employment disputes before courts at all levels, including the Supreme Court.Is your handbook truly up to date? One of the points in the employment relationship where the employer can best position itself to achieve its business objectives is in the setting of policy—a process in which the law affords employers broad latitude. A properly drafted policy manual can help foreclose or limit a lawsuit, and a manual that is prepared or updated carelessly can serve as the foundation for a legal claim.
Here are several ways to tell at a glance whether your organization has postured itself to best advantage.
Prohibition of Retaliation
Retaliation is one of the most difficult claims to defend against. Often an employee can posit a plausible claim simply by showing that he/she engaged in some protected activity (such as raising questions about legal compliance or inappropriate conduct) and that some adverse consequence followed. The absence of an articulated anti-retaliation policy hampers the employer’s ability to defend itself, in a situation where the playing field may already seem tilted against it.Document Retention
All employers should have thoughtful and current policies governing the periodic discarding of files and the retention of essential documentation. Getting rid of unneeded files is a practical necessity, but the law requires that certain documents be retained for specific and varying periods of time. And the threat of legal claims will create an additional retention obligation. The very fact that documents containing evidence relevant to a potential legal claim are discarded can itself create legal liability for employers. Several recent judicial decisions have imposed harsh sanctions on employers who have failed to preserve electronic evidence relevant to a pending Equal Employment Opportunity (EEO) claim, and permitting the destruction of evidence can lead judges to instruct juries that they can infer that the discarded items contained harmful information.
Integrating Leave Policies
Managing employee leave has become one of the most challenging responsibilities of HR departments. Vacation, sick leave, military leave, and other absences need to be tracked carefully and calculated in light of the requirements of federal and state family and medical leave statutes, disabilities laws, workers’ compensation regulations, and a host of other ordinances governing leave.
Anti-Harassment Policy
In its 1998 Farragher and Ellerth decisions, the Supreme Court ruled that even where actionable sexual harassment by a supervisor may have occurred, an employer may limit its liability by showing that it took reasonable care to prevent and promptly correct harassing behavior (and also that the employee unreasonably failed to take advantage of those preventive/corrective measures). Courts regard the promulgation and enforcement of a clear harassment policy as an essential preventive step, and thus a prerequisite for invocation of this affirmative defense. Note that apparently small issues—such as whether the policy provides an alternative reporting channel when the alleged harasser is in the chain of command—may determine whether or not a policy is deemed to provide an effective remedy. Courts have extended the affirmative defense to harassment based on factors other than sex, so employers should ensure that their policies cover all forms of illegal harassment.
FLSA Correction Policy
Recent regulations issued under the Fair Labor Standards Act, issued in part to help employers manage the avalanche of litigation over entitlement to overtime pay, create an opportunity for employers to minimize liability through the prompt correction of errors. To take full advantage of this safe haven, an employer must promulgate a policy making the legal limits clear.
Electronic Communications
Does the company reserve the right to monitor Internet usage and e-mail communications on its system? Does it forbid access to inappropriate sites? And does it ban the posting of materials on the Web that may embarrass the company or bring discredit on it? If not, when you seek to take otherwise justifiable disciplinary action, you may be met with the invocation of alleged privacy rights, perhaps not preventing you from acting but surely making the task more complicated and disruptive.
Disclaimer
Most employers now understand the crucial importance of including a disclaimer—a clear, visually obvious proclamation at the outset of the manual stating that it is not a contract, that it can be modified at any time, and that employment is at-will. What employers may not appreciate is that courts will sometimes look beyond even properly prepared disclaimers and hold, based on subsequent language in the manual, that the employer has made specific contractually binding commitments.
Non-Solicitation and Non-Distribution Policies
The rules regarding non-solicitation and non-distribution are complicated and vary depending on whether the activity is conducted by employees or non-employees, and where the soliciting and distribution of literature takes place. Poorly drafted non-solicitation and non-distribution policies can create problems for employers, and often are used as evidence against the employer in unfair labor practice charges and election objections before the National Labor Relations Board (NLRB). Even non-unionized employers can be found responsible for unfair labor practices if their restrictions on solicitation and employee speech are improperly drafted or limit "concerted protected activity."
Multi-State Workforces
Key employment laws vary greatly from state to state. Cities and states often protect categories under their EEO laws that are not protected under federal law (sexual orientation, personal appearance, and family responsibility, for example). Some states enforce restrictive covenants vigorously, while others impose limits on employees' future employment opportunities only in very narrow circumstances. Most multi-state employers seek to create a manual that includes the broadest possible collection of rules of general applicability; they then supplement the manual with short statements of policies that apply in particular jurisdictions. You should read your manual from the perspective of the jurisdiction least likely to enforce it and consider what the consequences might be for enforcement of your regime.
Grab Bag
There are a host of other questions you should ask. Do you give employees the right to make copies of their personnel files (giving free discovery to plaintiffs' attorneys)? Do you speak in terms of gender-specific "maternity leave" or more generally about "parental leave"? If you have a list of infractions that invite serious discipline, is the list written flexibly, so as to avoid an argument that conduct that was not iterated deserves a less severe employer response? Does your orientation process involve getting a written acknowledgement from each employee that he/she has read and will obey the rules, so as to foreclose any argument downstream that the manual was never properly presented? Do you forbid all disclosure of information about employee compensation, in possible violation of the NLRB? If you find these problems lurking in your personnel manual, you should address them promptly—your own policy manual should not make the legal landscape more challenging for you.
Drawn from an article published in The Corporate Counselor click here to see the entire piece.
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