Can your employee handbook get you in trouble?
Many healthcare businesses have an employee handbook, or employee policy handout, but fail to update them on a regular basis. There have been a large number of changes to employment law over the past couple of years that have forced me to review these documents more closely.
The handbook should be a general overview of your expectations while working in your business. Sometimes you can get too specific in your guidelines for disciplinary action, which can tie your hands in situations when an immediate action would have been better for your business. Your handbook is an evolving document and should be reviewed every year after the Supreme Court has ruled on all pending cases and released all their rulings at the end of June. It is not intended to be a comprehensive list of rules, but rather guidelines about how you expect employees to conduct themselves in your business.
Here are some items you should be sure to include:
Do you have a social media policy? If you have one, does it prohibit employees from posting negative comments about your business?
You might be surprised to learn that you cannot prohibit employees from posting negative comments about your business on social media. You can prohibit the use of social media in the work area on business time. You can prohibit the use of company computers to visit social media sites. You should be prohibiting all employees from accessing their personal email accounts on company equipment.
If your state has an at-will employment law, you should also have a statement that the handbook cannot be considered a contract and that you have the right to make changes in an employee’s status whenever you feel necessary.
The National Labor Relations Board (NLRB) has been critical of these statements in 2016, stating that at-will statements may limit the employee’s right to engage in activity to challenge their at-will status. In other words, the employee might want to negotiate a contract that gave them better benefits or wages. So your statement should include that only the head of the company or organization can negotiate a change in an employee’s at-will status.
The word permanent needs to be removed from your handbook. An example might be a statement that after probation the employee would become a permanent full time. That can be construed as generating a contract, so don’t use it in your handbook.
Do you have a huge list of things employees might do that would result in disciplinary action?
You might want to review that process and delete the list. You might instead have a statement about honesty, ethics, respect and the attributes you expect from them rather than a long list of items they can’t do. Trust me, there have been legal cases won because the termination infraction was not covered by the list in the handbook. You should also have a statement that holds employees to a standard that they should refrain from physical contact, threatening behavior, or violence.
Do you have a policy about your process and how you will track absences?
Review this policy carefully. Less is nearly always better than extensive. Do you have so much detail in the policy, that in practice you never comply with all of the rules? That could cause a problem if an employee wants to fight a termination and takes your handbook to an attorney. You should always have a statement that your disciplinary process, while liberal in nature, could result in immediate termination depending on the seriousness of the infraction
Foul language is always grounds for termination, right? Here is an example: An employee discussion gets heated and loud in a room with a closed door and not witnessed by other employees, and the employee is cursing and making disparaging statements about the supervisor. You would think that this is a reason to terminate, but it appears the employee can use foul language and make disparaging statements about the employer and supervisor as long as they are not within hearing of other employees.
That is exactly what happed in the case Banner Health System dba Banner Estrella Medical Center and James A. Navarro. The NLRB ruled that the employee’s behavior in using foul language was not threatening, and an employee should be able to have a discussion about workplace issues. So be careful about your documentation when an altercation occurs. If you felt threatened by the employee’s behavior, make sure that is included in your disciplinary document.
Do you have a policy that says harassment should be reported to the manager or supervisor?
Just keep in mind that the manager/supervisor could be the person harassing the employee. You might want the employee to have the option of reporting to any manager. They need a way to report that does not affect their job in any way, so the reporting might be to a manager of a different department, or a supervisor in a different area.
The handbook should make clear that you will not tolerate harassment, and if any employee experiences or observes harassment it should be reported immediately. The last thing you need is for a terminated employee to complain about unreported harassment and then enlist another employee to confirm their statement. Since your handbook should require that both employees must report harassment immediately, it would be more difficult for an employee to win a legal case if it was not reported until after the employee was disciplined.
Have you reviewed your benefits to make sure they comply with federal and state laws?
After the U.S. Supreme Court ruled that same sex marriages are legal in all states, many employers did not look at the wording of their benefits contracts. Several cases were brought against employers for having an insurance policy that did not cover same sex spouses.
If you do not have enough employees to be impacted by the Family Medical Leave Act, leave it out of your handbook and state you are not required to offer FMLA benefits. If you do have to comply with the FMLA, make sure your employees are told who to contact and that they must fill out the proper forms in order to be eligible.
Look at items like bereavement leave and make sure you have taken into consideration same sex spouses.
Does your handbook explain specifically how these will be calculated?
Whether you choose vacation and sick leave in your business or PTO, you need to document how they will be calculated and when the employee will be eligible for these benefits.
The handbook should also state whether any benefits can be carried over at the end of the year, or if employees must use or lose benefit time. If your policy allows some leave time to be carried into the next year, then that should be specified in the handbook. It should also address whether leave time survives termination of the employee.
The handbook should not spell out the specific insurance coverage for healthcare. It should only specify that you offer health insurance and a 401K plan if you offer that. The handbook should tell the employee when they are eligible for benefits and have a statement that the benefits could change at any time.
Each year you should give the employees a separate benefit document that covers the specific information about insurance coverage and scheduled vacation days. That way you can modify as needed without requiring employees to read and sign the entire handbook again.
Does your handbook prevent employees from discussing their pay with other employees?
The NLRB has ruled that companies cannot ban employees from telling other employees how much they are being paid. These rulings are generally aimed at large companies with many employees, but your handbook must be consistent with the current law in your state as well as the latest rulings from the NLRB. The motivation behind this ruling is that when employees have a complaint against management, they need the right to collect data to support their grievance. As a business owner, you should review the handbook yearly, at a minimum, and consult your company attorney to review any changes to make sure you have adequately protected your company from employee lawsuits. Do not just go on the internet and get a do-it-yourself handbook. Your handbook should be common sense guidance to your employees about your specific business, and these handbooks that are available online are not written to match your individual business.