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While lawyers can debate the wisdom of employee handbooks, the truth is that in-house counsel can significantly improve their company’s chances of prevailing in employment litigation by carefully drafting and widely disseminating a handbook. Many lawyers have seen employee handbooks backfire on companies. Exhibit A at trial, oversized for the jury’s viewing pleasure, is a photo of the all-white, male management team with quotes from the welcome page raving about how much money the company made last year. Nevertheless, even though they can and will be used against an employer, handbooks remain a necessary risk. So unleash that Mont Blanc and begin drafting aggressively. It is time to turn the tables on those unwitting plaintiffs lawyers. A well-crafted handbook can create penalties for the kinds of bad behavior some workers engage in when they’ve decided to sue their employer. For example, some employees gear up for their planned suits by engaging in what can best be described as entrapment. Equipped with a small recording device concealed in a purse or pocket, they secretly tape workplace communications. Cell phones with video recording capabilities now provide the opportunity to add visual evidence. In some instances, a supervisor may suspect that the future plaintiff is goading the unwitting target into saying exactly what the plaintiff’s counsel hopes to capture. Unfortunately however, that part of the communication rarely gets recorded or saved. Employers can take some of the bite out of these unseemly litigation tactics by adopting a written policy prohibiting taking photos and making any audio or video recordings without the express written consent of all parties involved. Then, if caught in the act, the company arguably can terminate the would-be plaintiff for violating the rule — assuming such termination is not a pretext for some form of unlawful retaliation. Even if the clandestine taping goes undetected until the plaintiffs lawyers produce the recording in litigation, the company may yet have the last laugh. By relying on the after-acquired-evidence doctrine, the company has the opportunity to prove that it would have terminated the former employee anyway for violating the rule against secret recordings. If the company successfully establishes this defense, any damages awarded for lost wages and benefits are cut off as of the date the employer discovered the infraction. Of course, a policy of this type would also prevent management from similarly recording conversations that could bolster their defense. However, jurors rarely view secretly recording employee conversations with favor, and it thus rarely works to the company’s benefit. In-house lawyers may also be able to use the after-acquired evidence doctrine in litigation against employees who failed to provide complete and accurate information during the application process. One example of this behavior is when an employee fabricates academic credentials. When writing the employee handbook, in-house counsel should include policies emphasizing that prospective employees must provide truthful and accurate information during the application process. Coupling this with a practice of consistently terminating employees who fail to do so provides a strong defense against future litigation. Similarly, if in-house counsel includes language requiring employees to notify the company of a paycheck or expense reimbursement mistake, a failure to report an overpayment may end up being quite costly to a plaintiff if uncovered in discovery. Any employer that has had a manager sit in the witness chair at trial or in deposition knows that handbook policies can also serve as ammunition for cross-examination. For instance, while it is not uncommon for annual evaluations to be delayed from time to time, this seems particularly true for the worst-performing plaintiffs. This unfortunate timing then allows the plaintiff to complain to the jury that he was unaware of any alleged performance problems because he was not evaluated in a timely manner. Well-drafted policies make it the obligation of the employee to notify human resources in the event an annual evaluation does not take place in a timely fashion. With such a policy in place, an employee cannot simply assume that no news is good news and must explain to the judge and jury why he failed to properly alert the company of this oversight before suing the company. SEVERE OR PERVASIVE The greatest opportunity for an in-house counsel to protect her company through proactive handbook drafting exists within the four corners of the company’s anti-harassment policy. Most harassment policies merely adopt the definition of harassment provided by the U.S. Equal Employment Opportunity Commission. While the EEOC definition is an accurate statement of the law, it gives the impression that any disciplinary action under the policy is an admission of a violation of law. To avoid this, the policy should also prohibit conduct that could lead to the creation of a hostile work environment if it were to become severe or pervasive. In this way, discipline for the random off-color joke or lapse in judgment at the office holiday party does not necessarily equate to the court’s definition of unlawful harassment. There’s only one affirmative defense available to the employer in a hostile work environment case involving misconduct by a supervisor. Having and distributing an anti-harassment policy is only the first step in asserting that defense. The company must also prove that the plaintiff unreasonably failed to take advantage of the reporting process or failed to otherwise avoid harm. Unfortunately, many such harassment cases quickly digress into the classic he-said-she-said scenario. From the company’s side, a supervisor who denies having engaged in any form of harassment is certainly going to deny that he was ever told to stop the harassment. Yet, if the policy allows an employee to lodge a harassment report with any supervisor at the company, the plaintiff need only allege that she told the offending supervisor to stop the alleged harassment to avoid an adverse summary judgment ruling. In-house counsel can better protect the company by drafting the policy to state that telling the harassing supervisor to stop does not constitute a valid report. The policy should also mandate reporting harassment by a supervisor directly to human resources. In this way, the employer is more likely to be alerted to situations triggering the higher standard of care. Moreover, if the plaintiff fails to properly notify human resources, the affirmative defense still remains viable. The policy can also require employees to report directly to human resources if they believe there is any repeat harassment or unlawful retaliation. This is helpful when a plaintiff testifies that it would have served no purpose to report the continued misconduct since no good came from the initial report. In-house counsel drafting the handbook should also be wary of writing a policy requiring reports by supervisors who witness harassment. Since harassment is in the eye of the beholder, it may not be apparent to the onlooker that one of the employees laughing at the questionable joke was actually offended. The company’s affirmative defense might be defeated if the plaintiff reasonably assumed the witnessing supervisor reported it. Follow this type of provision with an explanation that it is always the employee’s obligation to report harassment, because others who witness the conduct may not recognize if it offended anyone. Well-crafted policies can be quite useful, even if they merely appear to state the obvious, such as, “All concerns about the appropriateness of an employee’s attire must be directed to human resources.” A male manager attempting to address the provocative clothing of a female employee who reports to him is committing professional suicide. Another seemingly obvious but important line is, “Do not send e-mails referencing the medical status of a co-worker.” Not everyone needs to know a particular employee had a nervous breakdown. “Do not personalize work-related e-mail.” The company can do without a pastel background with quotes from the Beatles or the Bible. Finally, “In light of workplace violence concerns, all threats, even if said in jest, will be taken literally.” An employee who says he wants to kill a co-worker for encouraging the waiters to sing “Happy Birthday” at the local burger joint is begging for termination. The list could go on and on, but in-house counsel shouldn’t let fear of litigation keep them from drafting good handbooks that can shield their companies from litigation. Connie Cornell is a co-founder of Cornell Smith & Mierl, the largest Austin , Texas -based employment law firm representing employers and management in litigation, counseling and training. She is board certified in labor and employment law by the Texas Board of Legal Specialization and certified as a professional in human res ources by the national Society for Human Resource Management.

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