Everyone wants to know the rules. Whether the arena is a grade school playground or the Supreme Court, the participants in any activity are more comfortable when expectations are clearly defined. It is not nearly as important that the rules be reasonable as that they be established in advance. As long as expectations are well-known and consistently applied, human beings are generally willing to adapt to them. Even if those rules prove detrimental to one’s position, griping, whining and complaining is not as common when participants know and understand the rules before engaging in the activity.
The American workplace proves this theory. Although there is no federal law that requires a private employer to provide handbooks to its employees, the happiest employees are those who know what is expected and believe their employers are consistently applying procedures that were established before the employment relationship began. An effective employee handbook communicates the employer’s expectations and the consequences for failure to meet them. It demonstrates an employer’s commitment to compliance with the law. Most importantly, it delivers simple answers to common questions and provides employees with a mechanism to resolve the inevitable issues that arise.
Most sophisticated employers in the 21st century already maintain an employee handbook or policy manual in some form. Management-side employment attorneys no longer ask a new client whether a handbook exists but when it was drafted, how it has changed over time and the process used to prove the employee received it. The most effective employee handbook is not a loose, unstructured compilation of dos and don’ts, but an organized and coherent document tailored to the particular workplace and written in plain language to explain the policies and procedures.
These policies and procedures, however, cannot be static. An employee handbook must be fluid and constantly evaluated in connection with changing laws and societal norms.
For example, the National Labor Relations Board has recently begun more aggressively invoking Section 7 of the National Labor Relations Act to challenge employer policies and procedures such as social media and at-will disclaimers in handbooks. Similarly, over the years, statutes including the Americans with Disabilities Act and the Family and Medical Leave Act have been revised to offer greater protection to employees.
Thus, it is critical that employers reserve the right to modify handbooks at their discretion and actively use that retained right to make changes and updates where appropriate to maintain compliance with the law and new technology that has changed the way people communicate.
However, revisions to handbooks cannot be haphazard or random. Rather, companies must establish a process that sets parameters for the review. For example, a revision might result from changes in an employer’s legal obligations or an employee’s substantive rights, the employer may desire to change its paid time off or moonlighting policies, or the employer may begin operations in locations where local state law is different than in the origin state. Whatever the reason, the employer must articulate its purpose so that it can offer a business justification for a handbook revision in the event it faces litigation that involves a handbook provision.
An employer that makes revisions to a handbook must also remember that receipt acknowledgement is as critical as the revision itself. For every revision, an employer should implement a process to distribute the revised handbook, provide new acknowledgement forms and retain signed acknowledgement receipts for every active employee. In litigation, a signed acknowledgement form from an employee is virtually useless if it is connected with an older version of the handbook that did not apply at the time the policy violation at issue occurred. For that same reason, an employer must always take care to retain prior acknowledgement forms for older handbook versions. The goal in litigation is for the employer to easily identify the policy at issue, the handbook applicable during the relevant time frame and the employee’s receipt of that handbook version.
Everyone wants to know the rules, but sometimes the rules need to change. The best practice is to create a framework for making handbook revisions so that they do not appear reactionary or punitive and provide employees time to adjust. When the rules do change, employers should indicate clearly to employees that a new handbook version will supersede the prior one and provide the effective date for the revision. Gripers, whiners and complainers thrive in disorder; productive and loyal employees value organization and clear expectations. The modern employer seeking these productive employees knows rules are mutually beneficial, and a well-drafted, up-to-date handbook is the first and best place to start.