Employee Handbooks: 5 Pitfalls

Karine Bohbot
March 11, 2009 — 3,019 views  
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Although Employee Handbooks are a must for most employers, whether they have a binding effect is another story. California presumes the employer-employee relationship is "at-will" (i.e. employers and employees can sever the employment relationship at any time with or without a reason). Yet the reality is that employees can get around that presumption and assert the existence of an employer-employee relationship requiring termination for cause only. Employees often use the employer's own handbook against them.

Here are 5 common misconceptions and tips to minimize these claims:

1. My "at-will" provision is somewhere in my handbook. I'm protected!

If your "at-will" provision is buried within the handbook and does not "stand out," it may not have the binding effect you think. Having the provision only on Page 13 buried in your section on discipline will not suffice.

To ensure, to the extent possible, that your employees understand their "at-will" relationship, this provision should be located on the second page of your handbook, by itself, in bold and in 14-inch font. It should also appear in other relevant portions of your handbook, such as your section on disciplinary procedures.

2. My employees got a copy of the Employee Handbook. I'm protected!

Simply providing your employees with a copy of your handbook is not sufficient. A long-term employee may claim she never received a handbook at the time of hire, and without some signed acknowledgment of receipt, the employee is likely to succeed on that argument, even if other employees received one at that time.

As such, ensure that all employees sign an acknowledgment that they have received the handbook and were given sufficient time to review it. Place the acknowledgment in their personnel files.

3. I instruct new hires to read and become familiar with the Employee Handbook. I'm protected!

A signed acknowledgment of receipt is not enough. When plaintiffs are asked at trial if they read the Employee Handbook, the typical answer is "no." When asked why not, the usual answer is "just didn't." Yet juries almost never fault these plaintiffs for not having read their handbook because most jurors, employees themselves, have not done so themselves.

You should provide employees a minimum of a day or two to review the handbook before accepting their signed acknowledgment. Also, take the time to review provisions in the handbook, including the "at-will" and harassment policies, before accepting their signed acknowledgment, to ensure they understand those policies you find critical.

4. The policies are written. I'm protected!

Although employers have written policies/procedures, they fail to follow them consistently and uniformly. They become selective about whom the policy applies to. This can form the basis for discrimination or retaliation claims.

It is imperative that you follow your written policies/procedures uniformly with almost no exceptions. Don't have the policies otherwise.

5. Having an Employee Handbook shows we have our employees' best interests in mind.

Having an Employee Handbook, no matter how employee-friendly, should never be the primary means of communicating your employees' significance to the success of your business. We regularly hear employees complain that their employers fail to take the time to listen to or understand their needs, that the handbooks simply pay lip service.

Remember that a business cannot run without its employees. Thus, take care to remember you are dealing with individuals and give as much respect to them as you expect from them. With this overall strategy, productivity can only grow!

About the Author

Karine Bohbot is a partner at Bohbot & Riles, a women-owned firm in Oakland, California. She has been practicing employment law for the last 11 years. She specializes in human resource consulting; specifically, creating employee handbooks, performance appraisals, disciplinary procedures, and advising on general employee matters. For more information about Ms. Bohbot or her practice, contact Bohbot & Riles at (510) 273-3111 or e-mail Ms. Bohbot at [email protected]

Karine Bohbot