I am often called to review employee manuals to ensure both their legal compliance and make an opinion about what is appropriate and what’s not. Many employers are interested in legal support for their Employee Manuals to determine what kinds of policies can help protect the employer from potential liability.
As to be expected, there are certain elements that need to be included in any Employee Manual. This time, I’d like to share what should not be included in a handbook.
The number one thing that I see most frequently in employee manuals for small businesses that does not need to be included is the Family Medical Leave Act (FMLA). The FMLA applies to employers who have at least fifty employees. So, if you do not have at least fifty employees, the FMLA does not apply for your company. There may be some state law equivalents that could apply. But, they will not be as stringent or technically demanding as the FMLA. Including FMLA-like policies in your handbook creates an explanation among your employees that FMLA is available to them – and under the law, it wouldn’t be.
The question is why does it get included? I blame the internet. Many people go online and see companies with a good reputation for employer-employee relations and download the employee handbook and implement it. But those companies often have a large staff and include FMLA because they are required to include the policy in their handbook. The FMLA is very particular and demanding, and if you do not have to comply, its best to keep it out. Note though, I don’t think online searching is bad, but check with a lawyer on this matter.
The second thing I see that does not need to be included are long descriptions of alternative times off, such as jury duty or military leave. These policies are often included in those on-line how-to guides, but from a legal perspective they do not need to be included. Every state has a slightly different law for procedures such as jury duty, and it is best for employers to have as much flexibility as possible. While employers are required to give employees time off for jury duty, the rules are different in each state for how jurors are called and compensated. If you are working in the Mid-Atlantic region, it’s likely that some employees live in a different state from where they work. Putting too many details into a policy, or if you are a multi-state employer, it is probably best to have a very generic policy that tells your employees to take their summons to their supervisor. If you include too many details it takes away the discretion of the employer to manage things on a state-by-state basis.
Another topic that is often included in employee handbooks that is either overwritten or may not be managed fairly from a policy standpoint is maternity, paternity, and adoption leave. Often I see this section and it is quite discriminatory, often against men. Most often the policy grants some number of weeks that provide for maternity leave, paternity leave, and adoption leave in order for family members to be able to bond. This is fantastic and I fully support it, but often the policy is written so that the father gets a couple of weeks while the mother gets eight to twelve weeks or more. (Some states are starting to mandate specific time frames).
What I recommend to clients is to separate maternity, paternity, and adoption bonding leave from a medical leave.
Being a guy, I have absolutely no concept of what the physical activity of child birth is like in anyway but intellectually. I have two daughters, but I will never have that physical experience. However, I know that child birth requires medical recovery.
Employers should consider segregating out a policy to have a maternity/paternity/adoption policy that is some number of weeks long, but make sure it is the same for everyone and in every case. Then employers should grant the mother giving birth a medical leave on top of the bonding leave so that the mother can physically recover. Whether that medical leave is paid or unpaid is often governed by state law.
It is always best to be cautious and consider a potential case of discrimination. An employer cannot have a policy that discriminates between men and women, and the arrival of a new child can be considered a “similar condition,” medical recovery aside.
The last concept that often gets included in policies is a dress code policy. I’ve written about this before, but you have to be very careful about dress code policy, particularly policies that treat men and women differently, or treat people of different faiths differently. It is a much better idea to take inspiration from General Motors who instituted a policy that is essentially two words long: “Dress Appropriately.” If you are working from a standpoint of “Dress Appropriately,” you give some flexibility to the employer, its supervisors, and its employees. If you have a client-facing employee you can set an expectation that says we dress in business casual or something along those lines, rather than enforcing a suit standard.
Those are some of the policies that are often included in Employee Manuals that need to be addressed differently, or not included at all. As always, if you have any questions you should consult a lawyer.