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Birmingham Bar Associations Bulletin Summer 2015

Employment law 3. Employee Handbooks Eliminate Guesswork As stated above, an employee handbook can be drafted to fit the workplace whether it be a law firm with a certain dress code or a burger joint with a “shirts and shoes” minimum requirement. A handbook that can grow and change as the workplace changes is the best option, since employee manuals are not “one-size-fits-all.” Perhaps, more important, an employee manual that covers all contingencies eliminates much guesswork and lost time. I have a small client who recently updated their handbook. Even though the client now has a complete handbook, the Executive Director still emails me from time to time asking what to do about an employee who has surpassed their sick leave allotment or what do when a long-term employee appears to have a difficult time handling the physical aspects of the job. On many occasions, I have to remind this client that the answer is in their own employee handbook. Because the company did not have an up-to-date handbook for a long time, problems were solved on an ad hoc (and inconsistent) basis. Now, this client breathes a sigh of relief and almost always states “I keep forgetting I already have the answers!” An employee handbook provides the employer and employee with all (or almost all) expectations, rules, guidelines and penalties for workplace behavior. An employee handbook should cover the ADAAA, attendance, bereavement leave, bonuses, clocking in and out, discipline, emails, FMLA, genetic information policies, holidays, inclement weather situations, leaves of all kinds, job postings, meal breaks, nepotism, open-door polices/questions, overtime, press inquiries, reimbursement policies, sick leave, social media, tardiness, travel rules, vacation leave, work attire, worker’s compensation, zero-tolerance policies, etc., (I think I almost covered the alphabet), and eliminates the guess work when a problem arises. Also, an employer does not have to rewrite the handbook each year. A proficient employment lawyer can simply review the handbook and update certain policies without reinventing the wheel. For example, at the end of February 2015, the Department of Labor revised the FMLA to allow for same sex partner benefits under the law. This policy can be revised quickly and is worth the investment. 4. Employee Handbooks Eliminate Deniability Another positive result of having an employee handbook is that an employee cannot claim ignorance. Many times in a deposition of a discrimination lawsuit or other workplace dispute, the plaintiff will state that he or she was unaware of the policy that suspended or terminated their employment. At times, this ignorance becomes a question of fact defeating summary judgment when the employer does not have a handbook or does not utilize it or introduce it to new employees on a “consistent” basis (there is “that” word again). An employee handbook is a helpful tool only when the employer uses it. Every employee must be given a copy of the handbook and any updates thereto. In addition, each employee must be given time to review the handbook (whether or not he or she does it) and must sign a provision that states they: (1) have been given the handbook; (2) had time to review it; (3) had an opportunity to ask any questions; and (4) understand the policies. The clause should read as follows: I, (Name of Employee here), have been given XYZ’s Employee Handbook. I have been given an opportunity to read and review the handbook, and ask any questions regarding any policy. By my signature below, I acknowledge that I have read and understand the employee handbook. Employee Signature Date The employee signature page should be maintained in a personnel file and may be used as an exhibit if the employee should claim, for example, that he or she is unaware of the sick policy or does not understand workplace dress code requirements. The investment of time and resources to create an appropriate employee handbook far outweighs the complications that can result when an employer does not have one. And once in place, it is only as good as the employer who consistently, consistently, consistently applies the polices contained therein. G 34 Birmingham Bar Association


Birmingham Bar Associations Bulletin Summer 2015
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