YOUR EMPLOYEE HANDBOOK – YOUR BEST DEFENSE
An employee handbook presents an excellent opportunity for you to educate
employees about your organization, its history, and its origin. It also allows you to establish a positive employee relations philosophy, to let your employees know that they are an essential and valued part of your organization, and to instill in them a loyal, positive, and favorable attitude towards you. It is also your best defense at an unemployment compensation hearing, before an administrative agency, or in court.
Every union-free organization that wants to remain that way should consider a clear statement explaining management’s preference for a direct, personal employment relationship and how a union-free relationship benefits everyone. Likewise, union-free employees should have a mechanism for resolving complaints, gripes, or employee concerns generally. Management has a vested interest in resolving such complaints internally, rather than having employees turn toward outside intervention, such as litigation, federal, state, or local EEO agencies, or third parties, e.g., labor unions. Such problem-solving mechanisms may range from the traditional “open-door” policy to full-fledged grievance procedures that culminate in such alternative dispute resolution systems, as peer review procedures or the use of independent arbitrators.
In addition to publicizing your employment-at-will policy, you are well-advised to emphasize that the policies set forth in your handbook can be changed or revised at any time, and specify how these changes will be effectuated and published. Setting forth such information will serve to protect you from employee claims that new policies were improperly adopted or publicized. Also, if employee benefits are discussed in the handbook, the handbook should contain a statement that the plan documents are controlling to avoid later claims that a benefit is vested when the employer never intended it to vest.
Importantly, you should have a list of offenses, generated from the supervisors who have an “ownership interest” in them, that will result in discipline, distributed in conjunction with employee handbooks and posted on appropriate bulletin boards. This list should be reasonably specific but should include at least one general, catch-all offense that is broad enough to cover unanticipated instances of misconduct.
Of the many such lists that have been developed, I favor one that has approximately twenty offenses. A greater number creates the danger of being trapped by the “jailhouse lawyer” employee who will argue that he/she did not commit the specific offense with which he/she is charged. A lesser number generally means that the offenses are so broadly worded that they do not give the employee reasonable advance notice of the type of conduct that is being condemned.
Whether you are in a unemployment hearing, dealing with the EEOC or in federal district court, an employee handbook which is uniformly and consistently enforced, is perhaps the most important piece of evidence in defending your actions.