If the first purpose of an Employee Handbook is to reduce risk by taking advantage of the legal safeguards afforded to employers by law, the second is to make sure that one that the employer minimizes its legal obligations through well-drafted employment policies.
The FMLA
Companies with more than fifty employees are subject to the Family Medical Leave Act (FMLA), and it is essential to make sure that FMLA obligations are understood, and minimized to the extent permissible by law. A properly written policy allows for FMLA leave to run concurrently with paid leave, so that an employer is not required to provide vacation or sick leave, or PTO, in addition to the twelve or twenty-four weeks of unpaid leave which are required by the FMLA. Likewise, the FMLA allows employers to choose how the twelve-month FMLA entitlement period is calculated (a failure to make this election in a written policy means that the Employer will be stuck with a very burdensome default calculation method).
Some Other Illustrations
An Employee Handbook can be used to make the best out of the legal obligations imposed on your company in many other circumstances. Here is a random sampling of policies which we advise employers to include in their Handbooks. Without these written policies, you will experience at least one of two things, at some point: you may have to pay unemployment compensation to an employee who has been terminated for cause, or you will be legally required to accommodate employee demands that you could have avoided.
- Employee requests for religious accommodations may have to be met, but not all last-minute or unreasonable requests have to be honored – your policy should minimize the burden of Title VII of the Civil Rights Act on your business;
- Have an exacting absenteeism policy, while complying with the FMLA, the Americans with Disability Act, the FLSA or any other law (there’s nothing worse than being taken advantage of by an employee who won’t show up to work);
- Make it clear that certain behaviors may result in termination (being clear that terminations will always comply with the law) – this will minimize your liability for payment of unemployment compensation;
- make it clear to employees that disparagement of the company, or interference with its good reputation, via a social networking site, is not acceptable;
- include a policy which requires employees to consent to any (legal) deductions from their paychecks which you may need to make;
- include a substance abuse and testing policy which meets the standards required of Georgia’s Certified Drug-Free Workplace program, which allows you a discount on your workers’ compensation premiums;
- make it clear to all employees that they are responsible for recording their work time, and that they are prohibited from working unrecorded and/or unauthorized overtime.
- make sure that your written policies describe an employee’s entitlement to payment of sales commission following termination. This is a contentious and legally gray area, and many arguments can be avoided with a policy which has been written or reviewed by a lawyer.
Take-Away: An employee handbook requires a relatively small investment of time and money at the outset, but it is almost guaranteed to pay for itself in saved productivity, legal defense expenses, and unemployment benefits.
Next and final installment of this article: Some final thoughts on Employee Handbooks
By: Eadaoin Waller, a senior associate in our Corporate Department
