Watch the Language in Employee Handbooks

Employee Handbook and Pen

Your company needs an employee handbook or personnel manual to ensure that everyone understands the policies, procedures and rules.

But improperly drawn, a handbook can create a binding obligation that can be used against you.

What you don't want is for those documents to be interpreted as an employment contract. Keep that in mind when crafting your company's employee documents so you lower the risk of running into unwanted legal hassles. Here is a list of Do's and Don'ts:

  • Don't use phrases such as "permanent position" or "the company promises." There should be no statements that you don't intend, or may not be able, to honor.
  • Don't leave explanations of the results and consequences of actions open to interpretation. Be clear, concise and comprehensive.
  • Do include a disclaimer that the manual is not, and should not, be considered an employment contract.
  • Do reserve the right to use your own discretion in individual cases involving policy statements or procedures.
  • Do reserve the right to make changes anytime, without advance notice.
  • Do require employees to sign a receipt stating that they have read the manual, including disclaimer provisions -- and that they understand it's a general presentation, not a contract.

Many states have held that employee handbooks can be enforceable contracts. Some courts have even found that handbooks or manuals create a presumption that the parties intended it to be a contract. That forces the employer to prove to a jury that a contract wasn't intended.

However, there are instances where courts have found handbooks unenforceable for various reasons:

  • The terms were so ambiguous that the parties couldn't have intended to create a contract.
  • The handbooks were distributed to employees after they started working for the company.
  • An "at will" termination clause was included.

Although these exceptions exist in some states, don't rely on them when drafting and distributing your manuals and handbooks. It's a good idea to get professional help when spelling out your policies and procedures. You will reduce the chance of a costly, time-consuming, disruptive legal battle.

New Law Adds to List of Protected Classes

The Genetics Information Nondiscrimination Act of 2008 (GINA) protects employees from discrimination based on their genetic information. GINA also prohibits health insurance carriers and group health plans from using genetic information to deny coverage to individuals.

Typical employee handbooks outline the nondiscrimination requirements of the Equal Employment Opportunity Commission to not base employment decisions on such factors as gender, age, pregnancy, race, color, religion, country of origin, citizenship, mental or physical disability, military service or veteran status. Employers who have not already done so need to add genetic information to that growing list.

In addition, employers should ensure that they also list any factors required by state and local law, which might include political affiliation, sexual orientation, gender identity, familial status and marital status.

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