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EXECUTIVE OVERVIEW

Creating an employee handbook can seem like a daunting task for an employer. Some employers have few, if any, written policies in place when they begin the process. Others may have adopted individual written policies in the past with little, if any, consideration given to how the policies can or should fit together in a handbook. Common questions include:

• Which policies should be included and which are optional?
• What does the law require?
• Can I use one policy for multiple states?
• How should the handbook be formatted?
• How often should the handbook be updated?
• Can and should signed acknowledgments be required?

This post highlights the key considerations for private employers seeking to create, distribute and maintain their employee handbooks. In particular, this post:

• Examines the primary reasons for creating a handbook;
• Provides guidance on creating a handbook, including drafting guidelines, considerations for employers that are creating a handbook from existing policies and tips for organizing a handbook;
• Considers steps to ensure compliance with the National Labor Relations Act (NLRA); and,
• Highlights best practices for distributing and maintaining a handbook.

KEY REASONS TO CREATE A HANDBOOK

Although there is no federal law requiring private employers to provide handbooks to their employees, there are numerous reasons for employers to do so, including:

• A handbook provides an opportunity to formally welcome new employees, introduce the organization and explain expectations;
• Grouping various employment policies together in a handbook makes it easier for an employer to ensure that each employee receives copies of all relevant policies;
• A handbook is a centralized place for employees to look for answers to common questions such as how often employees are paid; and,
• Handbooks and signed acknowledgments can assist in an employer’s legal defense.

CREATING A HANDBOOK

Most employers begin the process of creating a handbook by deciding which policies to include. Some policies are required or highly recommended. Other policies are optional and their inclusion in a handbook largely depends on the employer’s preferences. For example, although some employers may have a telecommuting policy in their handbook, others do not because not all employers permit telecommuting. Accordingly, employers seeking to create a handbook for the first time should evaluate which policies they currently have and which policies they should implement. Employers should only include policies they intend to follow because failure to follow written policies can cause employee confusion, significantly damage morale and recruitment efforts and create legal liability, including discrimination claims.

Drafting Guidelines

Although a handbook must be tailored to meet the specific needs of an employer’s workplace, employers should consider the following when creating policies for a handbook:

• Using a positive and professional tone that matches the organization’s culture;
• Eliminating unnecessary complex or legal terms. Instead, handbooks should use plain language to explain the employer’s policies and procedures;
• Avoiding overly rigid disciplinary rules and any other language that could be interpreted as creating a contractual obligation requiring just cause for termination. Instead, give the employer discretion to discipline and terminate the employment relationship. For example, a handbook should not claim to list all possible reasons for termination of employment;
• Including enough information so that the policies can be understood, but avoid providing too much detail. A handbook should not overwhelm employees, for example, by including all office procedures, such as instructions on requisitioning office equipment. Employers often have a separate manual covering workplace procedures;
• Evaluating the demographics of the workforce. For example, if employees speak a language other than English, consider providing the handbook in an alternate language;
• Using situations that are familiar to employees when providing examples;
• Including contact information for an employer representative who employees can contact if they have any questions about the policies (see Welcome Statement).

Creating a Handbook from Existing Policies

If an employer is creating a handbook from existing policies, the employer should consider conducting an audit to confirm all existing policies are up-to-date. Because policies may have been created by different departments, it is also important to ensure consistency among policies before employees read policies as a single collection in a handbook. Before finalizing its handbook, an employer should be certain all policies:

• Comply with current law. In addition to an employer’s compliance and legal obligations, policies should demonstrate an employer’s commitment to adherence to current law because the policies in a handbook often become exhibits in an employment litigation or administrative charge;
• Are current with respect to the employer’s business practices. Employers must reflect any changes to their policies or procedures;
• Are internally consistent and do not contradict each other. For example, the complaint procedures in an equal employment opportunity policy, anti-harassment policy and anti-retaliation policy should be consistent with one another.
• Use one voice and make sense when read together. Although numerous people are often involved in creating the handbook, at least one person should read the handbook in its entirety before the employer distributes it to employees.

Tips for Organizing a Handbook

Because handbooks include numerous policies covering various topics, they can become unwieldy if they are not properly organized. Best practice is to:

• Organize policies by subject matter. Use section headings to break up the policies. For example, see the second part of this Note beginning with Structuring a Handbook: Introduction.
• Create a table of contents. Employees can more easily find a policy, or group of policies, if the handbook includes a table of contents.
• Consider using individual pages for each policy instead of including multiple shorter policies on the same page. Organize the pages in a loose-leaf binder so that individual pages can be replaced easily when a policy is updated.
• For online handbooks, consider online acknowledgment and verification of having reviewed policies.
• Include the date on the first page of the handbook or if using a looseleaf binder, on each page. This makes it easier to confirm that a handbook includes the most up-to-date policies.

DISTRIBUTING OR POSTING A HANDBOOK

Employers should make handbooks available to employees either electronically or by providing a hard copy:

• When the handbook is first created;
• At hiring, such as at new employee orientations;
• Each time the handbook is updated. If an individual policy within the handbook is revised, for example, the anti-harassment policy, an employer may choose to distribute or electronically circulate only the updated policy to employees if employees have already received copies of the handbook and the remainder of the handbook has not been revised.

Employers that are making handbooks available to employees for the first time should consider scheduling a meeting to introduce the handbook to all employees. Best practice is to designate a specific person to distribute or coordinate access to them. This individual is typically someone from the organization’s Human Resources department who is able to answer any questions that employees may have regarding the employer’s policies.

After an employer makes the handbook available, it must continue to ensure that all new employees receive electronic access or a hard copy. Most employers make handbooks available to new employees during new hire orientation. Some employers set aside time during orientation for new employees to review the handbook and ask any questions they may have as they read through the policies.

Employee Handbook Acknowledgments

Employers should include an acknowledgment of receipt, review and understanding at the end of their handbook. This minimizes the potential for employees to later claim ignorance of a policy as an excuse for non-compliance, particularly when non-compliance leads to termination of employment or another kind of adverse employment action.

The acknowledgment should include a disclaimer that nothing in the handbook creates an employment contract. Additionally, in nonunion settings, the acknowledgment typically includes an acknowledgment:

• Of at-will employment. For employees who have an employment agreement, the acknowledgment can include language that the employment agreement governs to the extent there is a conflict between policies in the handbook and the employment agreement; and,
• That the employer has the right to modify or delete policies without notice.

Employers should be diligent in tracking acknowledgment forms and should conform to the following best-practices:

• Set a deadline for return or completion of signed acknowledgments. An employer should follow up with any employees who fail to submit acknowledgments;
• Keep signed acknowledgments in the respective employee’s personnel file;
• For electronically signed acknowledgments ensure that state law does not place limits on the validity of e-signatures and consider maintaining a separate manually signed acknowledgment as well;
• Identify the title and date or version of the handbook for which the employee acknowledges receipt, review and understanding. If there is a later dispute about or lawsuit involving which handbook an employee received, a signed acknowledgment that specifies the particular handbook will be helpful evidence for the employer.

What to Do if an Employee Refuses to Sign an Acknowledgment?

If an employee refuses to sign an acknowledgment, the employer should Ask the employee to write “I refuse to sign this acknowledgment” and the date in his own handwriting on the acknowledgment. If an employee later challenges receipt of the handbook, the employee’s statement is helpful evidence for the employer.

If an employee will not write that he refuses to sign the acknowledgment, the employer should have the primary contact for handbook distribution or posting write “I gave [EMPLOYEE NAME] a copy of the handbook on [DATE]. [EMPLOYEE NAME] refused to sign the acknowledgment.” Another employer representative should be present to witness the employee’s refusal and the statement from the individual who distributes the handbooks. The witness should also sign the refusal to acknowledge letter.

MAINTAINING AN EMPLOYEE HANDBOOK

Employers must review handbooks periodically to ensure that all policies are current and lawful. Some employers choose to review their handbook annually. Others designate a particular person to monitor changes in the law or in the employer’s procedure on an ongoing basis. At a minimum, a handbook must be reviewed and revised, if necessary, when:

• There is a change in the law. For example, when the Genetic Information Nondiscrimination Act of 2008 (GINA) was enacted, employers revised their equal employment opportunity policies to demonstrate compliance with GINA’s prohibition on discrimination on the basis of genetic information;
• There is a change to the employer’s policies or procedures. If, for example, an employer decides to limit outside employment and creates a policy prohibiting outside employment, the policy should be added to the employer’s handbook; and,
• The employer expands into new states. The employer’s handbook likely will need to be modified to be consistent with state law and to incorporate any additional policies required by state law.

A revised handbook should indicate that it supersedes any prior handbooks so that employees are clear about which policies are current. Employers should distribute or post revised handbooks, reissue acknowledgment forms and collect signed acknowledgments from all employees. Additionally, when an employer distributes an updated handbook, it should keep copies of any older versions. If the employer is ever involved in litigation, it should be able to point to the written policies in effect at the time of the challenged employment action. Best practice is to keep individual policies for the longest statute of limitations period applicable under federal or state law.