20 May Employee Handbooks: Written to Be Followed
Recently I’ve done several talks related to employee manuals. The Maryland General Assembly has finished their work and a variety of laws have been passed, so we must go about the business of updating our clients’ handbooks. Side note, if you need your handbook to be reviewed, now is a great time to do so (the month of May once all new laws have passed).
One of the purposes of a handbook is to provide consistency for managing employee issues and questions. There is a recent case that came down out of the United States 4th Circuit Court of Appeals. An African American employee texted in sick to his manager, who unfortunately did not see the message until the next day. The next day, the employee communicated that he was feeling better and would return to work on the next (third) day. Except, the company decided to fire this employee for job abandonment. The plaintiff sued the company for discrimination.
In many cases like this it is impossible to prove discrimination, unless you can find what the law refers to as a comparison case. In this case, the plaintiff found a comparable case. The judge revealed that this company permitted another employee to engage in pretty much the same behavior (by text) and did not fire that employee, who was white.
So, here’s the problem: a discrimination case is not just about race or sex. It’s about different treatment of employees. In this case, the treatment was not necessarily related to his race, but that is how the foundation of the case was framed. The fact of the matter is that he was treated differently. Whether that has anything to do with his race or not is irrelevant — the discrimination claim is that this person was treated differently than someone else in very similar circumstances. Race is one of those protected classes. Everyone belongs to a protected class of one sort or another (yes, even white men).
The discrimination was bad enough and was adequate grounds for a victory in court. However, in this particular case, the court noted something else: that the employer had violated its own policy. The policy in the employee handbook defined job abandonment as three days no call, no show. But, they fired this particular person after one day of no call, no show, when the manager did not see the text message. But, the manager received a call and a text on day two, saying that the employee was returning the next day. The defendant company actually violated its own policy written in an employee handbook.
This is where the employee handbook becomes important. Managers often make their own decisions which is often necessary for the company operations. As the employer, you want to make sure those decisions are very consistent. If you have a policy, which in this case was a job abandonment policy defined as three days no call, no show, then that is the policy you must follow.
I want to be clear that an employee handbook is not a contract. It can be changed by an employer at anytime with or without notice and without legal consideration. Though, notice is always best. If you have a policy written, it has to be followed the same way by all managers. If you say text is an inappropriate way of notice, then it must be explicit which mediums are accepted.
An employee handbook exists in part to make sure decisions and actions taken by the managers are consistent with one another.
So, before you go around firing people for anything and allow your managers to operate as they see fit, you need to conduct training to make sure your managers are on the same page all the time, every time.