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Writing an employee handbook is tricky business.
The handbook will create legally enforceable expectations among your employees. Every word must be planned carefully. Below
is a step-by-step outline to help you begin drafting or updating your employee handbook.
Avoiding Common Mistakes
When
drafting handbooks, many employers make the mistake of failing to reserve important rights, promising more than what they
intend or the law requires, or imposing requirements that do not comply with the law. Consider, for example, a policy that
states "time-and-a-half overtime will be paid for all work in excess of a five-day week” -- such a policy would violate California's
daily overtime law or double time pay provisions for employees who work longer hours in a workday; on the other hand, the
policy may provide more than the law requires for employees who work part-time hours six days a week.
Obtaining Legal
Review of the Handbook
Once the handbook is close to final form, it must be reviewed thoroughly by an experienced employment
law attorney, and not simply a general practitioner. The attorney’s review should cover all issues of legal compliance, include
policies and concepts that you may have omitted, and give your organization direction and helpful advice about how the handbook
policies affect your human resources planning. At least once a year, the handbook should be re-checked by employment law counsel
to make sure it complies with legal changes.
Creating an Easy-to-Update Format
Before drafting a handbook,
consideration must also be given to its format. Although policies contained in the handbook should be general enough to remain
applicable year after year, changes must inevitably be made to certain policies as you fine-tune the handbook and as your
organization and the law change.
To make updates quickly and economically, the pages should be printed from your computer
and compiled in a three-ring binder. Each policy should begin on a different page so new pages can simply be distributed to
the employees to be inserted in the binder. Each page should show the date of the handbook. When policies are revised or added,
the new date should appear on each new page. Making employee handbooks available on computer networks, rather than hard copy,
also makes it easier to update.
Now that you have considered preliminary issues, you should be ready to begin planning
the content of the handbook. Outlined below are the ten basic subject areas found in most employee handbooks.
SUBJECT
1: Handbook Introduction
This section usually contains organizational history and a description of the business. It
should also explain the purpose of the handbook and explain that the handbook will be changed by the company from time to
time. It should also contain an at-will statement confirming that either the employee or the company may terminate the employment
relationship at will with or without cause at any time.
SUBJECT 2: EEO Policies
Most handbooks contain policies
stating something to the effect that the company makes its employment decisions on the basis of individual merit and does
not discriminate on the basis of sex, race, color, religion, national origin, age, sexual orientation, physical or mental
disability or any other characteristics protected by law. Beginning in 2004, employers also may not discriminate on the basis
of “gender identity.”
Every employer should have a written policy against sexual harassment and notify employees of
specific rights under California law. You may, but are not required to, make your policy a general policy against unlawful
harassment, including harassment on the basis of sex, race, color, national origin, sexual orientation and other protected
characteristics in addition to sexual harassment.
SUBJECT 3: Pre-Employment Matters
In this part of the handbook,
you should set forth your immigration compliance policy as required by law. Any other pre-employment matters that you may
require, such as arbitration agreements, medical exams, ability tests, honesty or personality tests and background investigations
may also be discussed in this part of the handbook.
SUBJECT 4: Employee Classification
Employers often usually
define several classifications of employees for purposes of determining eligibility for various benefits. Later in the handbook
where benefits, such as vacation, sick time and leaves of absence are discussed, it is important to continue using the same
classification labels and specify the exact category of employees eligible for such benefits.
The following are examples
of typical types of employee classifications for benefits purposes: “orientation employees” (those still in the probation
or orientation period), “regular full-time,” “regular part-time,” and “temporary.” In addition, you may wish to describe classification
of employees as “exempt” or “nonexempt” for overtime purposes. At the conclusion of the section regarding employee classifications,
remind employees that no matter what categories they falls under, employment with the company may be terminated by either
the employee or the company at will with or without cause at any time.
SUBJECT 5: Work Hours and Payroll Practices
In
this part of the handbook, describe the company’s usual hours and days of operation, meal and rest period periods, overtime
policies, time clock and time reporting requirements, paydays and payroll deductions.
SUBJECT 6: Company-Provided
Benefits
This section of the handbook should describe in detail your company's paid or unpaid sick time, personal time,
vacation, and holidays. The policies should be specificy about who is eligible, when they accrue and use time off, the amount
of time provided, and how these benefits interact with legally-required leave time.
You may wish to include a reference
to State Disability Insurance which provides paid leave for non-work related disability, and Paid Family Leave benefits which
will be available beginning in 2004.
Any other benefits provided by the company should be mentioned, such as child
care reimbursement, flexible spending accounts, dry cleaning services, meal delivery, and the like.
SUBJECT 7: Leaves
of Absence
Federal and state laws require a myriad of types of leaves for non-medical and medical reasons depending
on the number of employees you have.
Non-Medical Leaves
Among non-medical leaves required by law are jury
duty, required appearance as a witness in a judicial proceeding, alcohol and drug rehabilitation leave, family care for eligible
employees, military duty, voting time (up to two hours on election day), parent-teacher conferences, school volunteer time,
and volunteer firefighter duty. Beginning in 2004, employers must also provide leave for crime victims, their family members,
and their domestic partners to appear in court in connection with the crime.
The eligibility requirements, length of
leave, exemptions for small employers, the mandatory or permissive use of vacation and other accrued time, and other details
are spelled out within each law. If you are trying to keep your handbook brief, you might simply mention that these leaves
might possibly be available to eligible employees and invite employees to contact human resources for details.
Medical
Leaves
Several types of medical leaves are required by law, depending upon the size of the employer: the serious medical
condition of an eligible employee, disability due to pregnancy, childbirth or related medical conditions, and workers’ compensation
leave for work-related injuries or illness. Employers may have to provide time off as a reasonable accommodation for physical
or mental disabilities. Beginning in July 2004, employers must provide up to six weeks for “Paid Family Leave,” which is actually
paid by employee contributions to a state fund.
Employers frequently offer leaves of absence in addition to those
required by law. For example, many employers will provide time off to an employee who has a serious medical condition yet
is not eligible for time off under the Family and Medical Leave Act.
SUBJECT 8: Standards of Performance, Expectations,
Discipline and Grievances
In this section of the handbook, employers sometimes list examples or types of unacceptable
conduct. Be careful to avoid listing behaviors that would require objective proof or may be difficult for you to prove. For
instance, instead of “wilful and repeated insubordination,” say “not following directions.” In addition, avoid referring to
misconduct as “cause” for termination. State that the list provides examples but is not all-inclusive.
You may wish
to discuss the company’s discipline policy in this section of the handbook, but be careful to avoid promising any formal order
of progressive discipline (such as oral warning, then written warning, then suspension, and then termination as a last resort).
After discussing inappropriate behavior and employee discipline, include another at-will statements.
This section of
your handbook may also contain a variety of other conduct-related policies, such as grievance procedures; policy prohibiting
alcohol and drug use or possession; computer use, e-mail, and software policy; no-solicitation policy; policy requiring employees
to report immediately all work-related injuries; brief description of your policy and training programs for workplace health
and safety, including a reference to the Injury and Illness Prevention Program that you maintain as required by law; standards
regarding dress and grooming, or care of uniforms (but be careful that your dress requirements do not unlawfully discriminate
on the basis of “gender identity” under new law).
SUBJECT 9: Termination and Post-Employment Matters
This section
may include policies regarding return of company property upon separation from employment, exit interviews, requests (but
not requirements ) for notice of resignation, and reference policies. Any policies about layoffs and reductions in force could
be included in
this section. Your separation or severance pay policies, if any, should also be set forth here.
SUBJECT
10: Acknowledgment Forms
The final part of the handbook should be a tear-out page on which each employee acknowledges
certain critical information. This is the last of four places where the at-will statement should appear. The sheet should
include the following acknowledgments: (1) receipt of the handbook, (2) promise to read it and adhere to the policies, (3)
recognition that the company can change, amend or eliminate any or all of the policies in the handbook at the company’s discretion
without prior notice, (4) agreement that either party may terminate the employment relationship at will with or without cause
at any time, and (5) understanding that, although the company may change other provisions of the handbook, the at-will nature
of employment with the company cannot be modified except in a specific written contract signed by the president of the company.
Good
luck with your handbook! We know it's hard work to write an employee handbook. Please CONTACT US
at the BURNETTE LAW FIRM at any time if you need assistance, advice, or sample policies.
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