Better to Go By the Book With H.R.

Posted on October 15, 2013 by

LAS VEGAS, Nev. — The first question that Robert Rosenthal of Howard & Howard Attorneys answered for attendees of The Complete HR Handbook session was an obvious one: Do I really need an employee handbook? As became apparent throughout the session, the only smart answer to this question is: Absolutely.

The most pressing reason for this is because written communication of employee values, policies, procedures and benefits can help limit legal liability and exposure. “You can limit the costs of litigation if you have the right policies,” said Rosenthal, a trial lawyer specializing in labor, employment, and business litigation. Not to mention that clear communication with employees will mean better-informed employees and can serve as an administrative time-saver.

From listening to the many questions from the audience, a safe assumption would be that many organizations approach employment policies in an ad hoc fashion. Which is only natural: Most limo operators are not human resources experts. But as in most cases of the law, ignorance is no excuse. Unfortunately, a lax attitude opens many small businesses up to potential claims of discrimination and unfair treatment.

Even if in the end you’re found to be legally in the right, that doesn’t stop a disgruntled employee from dragging you through a costly lawsuit. An employee handbook can serve, in part, as protection from being ambushed. Consider it a first line of defense. Here are some highlights from Rosenthal’s presentation:

Handbook Policy Must-Haves
Rosenthal began by covering the mandatory components of any handbook. One of the most important of these is to have an at-will provision, which establishes your company’s at-will policy and prevents employees from arguing they can only be fired “for cause.” Although there is a presumption that the employer-employee relationship is at-will, this is an important safety precaution.

Other mandatory components include a confirmation of receipt; statement of equal opportunity employment; introductory statement; right to revise clause; unlawful discrimination, harassment, and retaliation; license, certification, and background check requirements; and policies for leaves of absence.

Recommended and Optional Components
Including additional policies in a handbook gives employers firm standing for termination when employees violate those policies. And without those policies in writing, claims of wrongful termination are more likely to occur. These policies may include use of employer property, employee conduct, and very specific grounds for termination.

Las Vegas labor and employment attorney Robert Rosenthal strongly favors use of HR handbooks.
Las Vegas labor and employment attorney Robert Rosenthal strongly favors use of HR handbooks.

Rosenthal encouraged attendees not to take a one-size-fits-all approach: Each company has its unique issues and needs, which require different policies and procedures. (Each state has its own labor laws, too, so check with your state labor department.) Also, Rosenthal warned that once you put a policy in place, you’re required to abide by it as well: “If there’s one take away, you [must] follow your own procedures and policies.”

Put Everything in Writing/Discrimination
In addition to an employee handbook, Rosenthal strongly recommended putting in writing any disciplinary or performance improvement actions; the reason being that although at-will employment has been established, that doesn’t mean you won’t have to justify someone’s termination down the line. “Employees don’t need a green light to sue you,” Rosenthal said. If claims of discrimination are brought, you will have to show termination is the result of a pattern of poor conduct by the employee. Written records kept in a personnel file will give you a strong case.

4 Common Handbook Mistakes

  • One size fits all: Even within the same industry, each business faces different issues depending on location, size, clientele, etc.
  • Not keeping up to date: The law changes and handbooks should too. Review yours once a year. 
  • Failure to enforce: Handbooks are effective only if enforced. Also, equal enforcement among employees will keep you out of legal hot water. 
  • Too rigid: Policies that are too rigid don’t allow businesses to exercise discretion. 

Source: Howard & Howard

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