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Birmingham Bar Associations Bulletin Summer 2015

4 Employment Law Sandra B. Reiss, The Reiss Firm LLC Valuable Reasons Why Your Workplace Needs An Employee Handbook As an employment lawyer who practices on both sides of the aisle, there are times when I think I have seen it all. While of course I have not, I do know that a number of plaintiffs and defendants in employment disputes would have been spared much grief if the employer simply had a strong and complete Employee Handbook. They are cost effective, provide consistency in workplace rules and practices and, in some cases, literally make the employer compliant with the law. Some years ago, I was consulted by a law firm whose handbook must have been fifteen years out of date; it did not have many current employment laws included in its policies, but did have a tuberculosis policy and another policy which promised payment for treatment for heroin addiction recovery! I learned of these antiquated and arguably bizarre rules when I reviewed the handbook in conjunction with my work for the firm. While the client and I had a good laugh about it, I do not know whether they have yet to update it. Some employers are afraid that, if they have a personnel manual or handbook, they will be locked into polices that do not fit their atmosphere or workplace. But employee polices can be tailored to fit any workplace, large or small, formal or informal, and can cover everything from A (attendance) to Z (zyban – drugs in the workplace). The following points are some of the reasons why an employer should invest to obtain or update their personnel handbook as the benefits far outweigh the costs. 1. If Your Business Does Not Have Certain Written Policies You Could Be Penalized And Fined Under The Law Or Lose Your Affirmative Defenses in a Lawsuit As in most areas of the law, employment law is a specialization that changes and grows more detailed every day. There are at least three areas of law that require employers to have written policies about certain statutes or the employer will be penalized both in and out of court. First, in a case of sexual harassment, if the employer does not have a strong and complete written policy regarding the definition of sexual harassment (as well as harassment based on race, religion, age, etc.) in addition to clear instructions as to whom to report the unwanted behavior and how the investigation will be handled, it will forfeit its affirmative defense in Court that it had “exercised reasonable care to prevent sexual harassment by promulgating an anti-harassment policy.” Farragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). In the Farragher case, the United States Supreme Court held that the employer forfeited its affirmative defense if it did not have such a policy that was disseminated to employees. Because employee handbooks are the norm in today’s society, an employer without an effective anti-harassment policy is facing a court which will be unsympathetic to its ignorance of this established law. Further, the Farragher ruling has a practical effect because, as it urges employers to create an anti-harassment policy that requires an employee to report harassing behavior, it provides the employer notice of the behavior in order to investigate and/or prevent the same. Similarly, the Family and Medical Leave Act (“FMLA”) contains penalties for employers who do not post a notice or include a policy in their handbook outlining the basic provisions of the FMLA, including but not limited to notice of an employee’s eligibility under the law as well as a listing of the rights and responsibilities provided to the employee pursuant to the law. Failure to provide such a policy to employees can result in a fine of $110.00, and may also alert the Court in any lawsuit that the employer is not mindful of employment laws. The same holds true for policies that fall under the ADAAA (“Americans with Disabilities Act Amendments Act”). An employer must post or include its policies describing the ADAAA provisions in an accessible place. Based on these three employment laws alone, an employee handbook is not an “option” for an employer, but a requirement for any workplace. 32 Birmingham Bar Association


Birmingham Bar Associations Bulletin Summer 2015
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