Drafting a sound employee handbook is an essential step to make sure your “team” is all playing under the same rules. This is often your first opportunity to communicate your policies, procedures, expectations, and employee benefits to your employees. If you ever face any employment-related claims, your employee handbook will be a key piece of evidence to show that you effectively communicated your policies and procedures. These are some of the critically important reasons that you take steps to ensure your employee handbook is legally sound.
Reaffirm the at-will employment relationship. In Wisconsin, courts have held that poorly drafted employee handbooks can be construed to create an employment contract between the employer and the employee. So, if your intention is that the employees remain at-will employees – meaning you can terminate them at any time for any reason or for no reason at all and likewise they can end their employment at any time – then you need to make sure your employee handbook contains a specific at-will provision. The at-will provision will inform the employees that they are employed on at at-will basis and nothing in the employee handbook is to be construed as creating an employment contract.
Communicate key policies/procedures. Your employee handbook is a great tool for you to effectively communicate your policies and procedures. It also becomes an important resource for your employees to consult when they have a question regarding work rules. The following is a non-exhaustive list of some policies and procedures to consider including in your employee handbook:
Equal Employment Opportunity Policy. This policy is essential in communicating your efforts to provide an equal employment opportunity to everyone, in compliance with state and federal law. The Wisconsin Fair Employment Act (“WFEA”) prohibits discrimination based on age; race; creed; color; disability; marital status; sex; sexual orientation; pregnancy, childbirth, maternity leave, and related medical conditions; national origin; ancestry; arrest record; conviction record; military service; use or nonuse of lawful products off the employer’s premises during non-working hours; and declining to attend a meeting or to participate in any communications that are religious or political.
Your Equal Employment Opportunity policy should expressly prohibit discrimination and retaliation and outline the procedure employees should use to report a complaint.
>> RELATED: Download Levy and Sanders’ Human Resources Conference PowerPoint presentation on this topic
Immigration Law Compliance Policy. This policy covers your company’s compliance with the Immigration Reform and Control Act of 1986 (“IRCA”) as well as other federal, state, or local laws that may apply to your business. The policy should address issues related to IRCA’s Form I-9 process, E-Verify, Social Security no-match, immigration sponsorship, and avoiding national origin and citizenship discrimination in recruitment, hiring, and termination.
Anti-Harassment Policy. In the wake of the “#MeToo” movement, many employers are reviewing their anti-harassment policies. It is imperative that every employer include a policy prohibiting harassment in your employee handbook. The anti-harassment policy should make it clear that you prohibit all forms of workplace harassment, including racial, sexual or national origin. The handbook will also outline the procedure for reporting complaints, demonstrate your commitment to taking each complaint seriously, and protect all complainants and witnesses from retaliation.
Anti-Retaliation Policy. Most anti-discrimination and anti-harassment policies should include an “anti-retaliation” provision. A stand-alone anti-retaliation policy drives home the point that retaliation is expressly prohibited and outlines the procedure for reporting any form of retaliation.
Leave of Absence and Time Off Policies. These policies list holiday, paid time off (PTO)/vacation, sick, and other types of leave. The policies should indicate how time off may be accrued, whether there is any year-to-year carryover, whether accrued but unused PTO/vacation time is paid out upon termination, and any other procedure governing leave. This is also a great place to include your compliance with and procedures related to any federal, state, or local leave laws that apply to your workforce, which may include the Family Medical Leave Act, the Wisconsin Family Medical Leave Act, military service leave, and jury duty leave.
Injury and Incident Reporting Policy. Make sure your employees know that ALL workplace injuries and incidents must be reported no matter how large or small they may think it is. This will help you avoid unnecessary delay in reporting claims and assist in disputing questionable claims. The injury and incident reporting policy should outline specific reporting procedures.
Disability Accommodation Policy. It is often a good idea to let your employees know that you are committed to the Americans with Disabilities Act (ADA)’s and WFEA’s requirement that you provide equal employment opportunities to qualified individuals with disabilities and to the ADA’s and WFEA’s interactive process. The policy should include how to request a reasonable accommodation, what information may be required, how the policy will be administered, and how accommodation determinations will be made. The policy should also include a “no retaliation” provision. Consult an attorney if you have questions about whether both the ADA and WFEA apply to your business, the interactive process, or your practice/procedures.
Employment Classifications and Employee Benefits. Your employee handbook is a natural place to list your various employee benefits. It is also often the first place an employee will look to determine whether specific employee benefits apply to them. Therefore, it is essential that you clearly define your various employment classifications (full-time, part-time, exempt, non-exempt) so that your employees know whether they are eligible for the various benefits you offer.
Give yourself the right to modify the handbook. Policies and procedures change over time. Therefore, it is important that you clearly remind employees that you (the employer) always maintain the right to change, modify, or delete any provision in the handbook at any time, at your discretion. Note, any changes, modifications, or deletions of any provisions should be made in writing and should include an employee acknowledgment of the change.
Include an acknowledgement form. An acknowledgement form is one of the most important aspects of any employee handbook. Because the employee handbook is often used as “exhibit one” in any employment-litigation and/or administrative proceeding, you should have each employee sign, print their name, and date an acknowledgement form indicating that they: (1) received the employee handbook; (2) read it, understood it, and agreed to comply with its provisions; and (3) are employed on at at-will basis (to again prevent the employee handbook from being construed as an employment contract).
When in doubt, call in the pros. Over the years we have seen countless employers attempt to cobble together handbooks based on an array of policies collected from a variety of sources. The far better approach is to devote time each year for a review of your handbook in light of changes with your business, the work force and applicable laws.
