Creating The Employee Handbook Is It A Double-edged Sword? Only If Carelessly Crafted

One of the most common questions health care practice managers ask counsel is whether or not it is advisable to establish an employee handbook.
Yes, it is a good idea to determine policies that establish a code of conduct and expectations. Yes, it is advisable to institute policies regarding leave, smoking, drug and alcohol use, and grievance procedures. Yes, it is good to set forth details regarding vacations and holidays, performance appraisals, employee type, and termination, to name a few provisions.

However, great care must be taken when drafting a document that may one day be challenged. Language and tone must be carefully considered in an effort to create a manual that minimizes risk to health care employers.

Not a Contract

Current trends see a shift in human resource management policy from the former exclusive management of employee behavior to now guiding management’s responsibility in controlling employee performance and behavior. Wise employers now use a manual as a tool to help convey their expectations of employee treatment by managers.

A handbook also helps inform managers about their legal obligations. Through it, an employer can set forth unambiguous expectations about company policies and suggest specifics about how situations should be handled. Drafting an employee manual with an instructional focus for managers also provides an additional safeguard, since it is detrimental to employers to include language that can be interpreted as bestowing employee rights. (This can be a can of worms down the road.)

One of the most potentially damaging inclusions within an employee handbook is language that infers the manual is a contract. For this reason, it is recommended that non-competition or confidentiality agreements and any other contract information be created as a separate document. If included in an employee manual, such agreements could effectively turn the entire manual into a contract.

To this end, it is also recommended that employees sign a separate statement that they have received and read the employee manual, that it is not a contract, and that they understand their employee status is “at will.”

There is a general presumption that employment in the Commonwealth of Massachusetts is at will. This means the employer or employee may terminate the relationship at any time and for any reason. However, it is important to safeguard this employment stipulation by including a statement to this fact in a prominent place in an employee manual. This helps protect employers from employees’ incorrect assumptions or interpretations that they have protected status.

Language is a very touchy subject in employee handbooks. Several buzzwords should be avoided to protect employers. “Cause,” “probationary,” “orientation”, “training,” “contract,” and “agreement” are some of the words that can cause problems in the future by inferring that an employment contract exists. It is advisable to carefully screen an existing employee manual for such buzzwords, then redraft the document if necessary.

It is also advisable to carefully consider the tone in drafting an employee manual. Binding words like “must” and “will” can cause trouble down the line if specific procedures are not followed.

An example would be a specific disciplinary policy including various steps that are necessary before termination. It is better to have suggested disciplinary strategies and state that a time limit within which an employee may bring his or her performance up to standard is at the discretion of the manager. This reinforces the theme that the employee manual is a guide for managers, and it helps to reduce an employee’s potential to bring claim that their manager did not follow a specific policy.

Traps to Avoid

It is wise to include a simple disclaimer stating that the handbook is intended for information and guidance, it is not a contract, and that management may revise it at any time. Lengthy and detailed disclaimers and, for that matter, excessively flowery language anywhere in the manual may be counterproductive by providing opportunity for interpretation. Brief and to the point is advisable.

Another employee handbook trap is the inclusion of promises of regular performance reviews and raises. This may cause a hardship for a company that is too busy to review an employee at a specific time or may not have the financial resources to cover an employee raise. It is better to include language that the company makes an attempt to review employees regularly and may grant raises, bonuses, etc. at its discretion.

It is important to note that any formalized policy is good only if it is enforced. It is very bad for an employer to enforce dress code requirements with one person, for example, and be lax with another of equal status. Enforcement in general is a responsibility that must be established before enacting policies.

Many health care practices are small operations without a human resource manager. Who will be granted the authority and responsibility for preserving fair and equal treatment of all employees while maintaining the standards established in the manual? Who will keep the records that may one day be required in litigation?
Various state and federal laws require employers to comply with equal-opportunity employment and employment of the disabled, wage and hours laws, safety and health regulations, family and medical leave laws, employee benefits, and various others. In addition to the required posting of policies on site, it is a good idea to include them in an employee manual. Harassment, both sexual and otherwise, is another hot button that should be regularly addressed both within an employee manual and separately.

The above-mentioned specifics are some of the recommendations that can help to protect employers from claims against them by their employees. It is important to repeat that employee handbooks are no longer drafted to exclusively manage employee behavior, but rather to guide management’s responsibility in controlling employee performance and behavior. This reduces the incorrect assumption that certain rights are bestowed upon employees.
If properly utilized, an employee manual is a powerful tool in the protection of employers.

Michelle M. Begley, Esq., is a member of the Litigation Department of Bacon & Wilson, P.C. Her areas of expertise include employment law and employee/employer issues. Additional specialties include domestic relations, family law, personal injury, and civil litigation; (413) 781-0560; mbegley@baconwilson.com.