Avoid These Common Employee Handbook Mistakes
Not Drafting your Handbook as a Guide for ALL Employees…
…even Managers, Directors and HR Personnel
While employers often think of employee handbooks as a guide for inexperienced employees who may be unfamiliar with professional norms; a well written Handbook also serves as a guide for managers in understanding what types of conduct must be addressed and how. This leads to more uniformity in discipline, which in turn minimizes the risk of some employees feeling targeted because their coworkers’ misconduct is ignored. It should also serve as a guide for less experienced HR personnel on how to respond to various situations, when investigations should take place and what type of misconduct should trigger the swift issuance of serious disciplinary action. Most important of all, the Handbook should empower HR to effectively defend unemployment compensation claims and wrongful termination claims.
Including a Progressive
Discipline Policy
The road to hell is paved with good intentions and progressive discipline policies probably play a starring role on it
Unless you are subject to a collective bargaining agreement mandating progressive discipline, avoid using one unless it is very narrowly tailored to very minor infractions such as tardiness or late shift callouts. It’s especially important to avoid implicit progressive disciplinary language such as “If your work is not acceptable, your supervisor will counsel you on this, but if your work does not improve, you may be subject to other disciplinary action including termination.” This statement basically communicates that prior to being terminated or disciplined for poor performance, you will be counseled on it, however, it is unclear what “counseling” looks like. The supervisor may believe they have counseled an employee when they repeatedly sent work back because it was not proof-read, but the employee may not see this as “counseling” for poor performance, instead viewing it as a simple instruction or reminder. When the supervisor has had enough, and moves for termination, the employee feels blindsided and perceives that the employer violated their progressive discipline policy and so must have suspicious unlawful reasons for the termination. Take it from someone who has read A LOT of legal opinions on discrimination claims—a progressive discipline policy almost always comes back to bite you for three reasons:
An employee in the middle of the progressive discipline life cycle does something that confirms they are a poor fit for the job so you want to get rid of them immediately.
Managers are often not trained on how to comply with the policy, mistaking frequency of misconduct with issuance of discipline so managers wait for three or four missteps and then issue serious discipline such as termination, a PIP or placing the employee on a final warning.
Employers often don’t realize that their handbooks imply that they use a progressive discipline policy, believing that the language indicates they have discretion in issuing discipline.
Read through your handbook (and other disciplinary policies) carefully to ensure that you have not created an unintended progressive discipline policy. If you need assistance with this, please contact us.
Treating Undesirable Workplace Conduct with the Same Seriousness as Unlawful Conduct
Unlawful Conduct Mandates a Specific Employer Response, Undesirable Conduct Should Permit a Discretionary Response
Never, ever equate undesirable lawful conduct with unlawful conduct in your handbook. When an employee reports sexual harassment or other unlawful conduct, the employer is required by law to react in a specific way to avoid liability for the unlawful conduct. When, for example, an employee reports bullying (not motivated by protected characteristic) or alleges they feel uncomfortable with their new supervisor because he talks down to everyone—legally, the employer has the discretion to determine how it will respond or if it will respond at all. However, if your handbook states that bullying is as serious as unlawful harassment, you run the risk of an over-zealous supervisor or HR member terminating an employee who reports unlawful conduct because their investigation revealed that the complainant also bullied the harasser. Obviously, this termination may run afoul of the anti-retaliation mandates in all workplace discrimination laws, and simply exposes you to unnecessary legal risk.
Advising Employees to go to their Supervisor to Initiate an ADA Accommodation or FMLA Leave Request
Supervisors have their own jobs to do; they should not be doing HR’s job.
Unless you give all your supervisors extensive training on ADA and FMLA compliance including how to identify a veiled request for leave or an accommodation, and how to respond to it in compliance with the law, the supervisor should NEVER be the person fielding or gatekeeping these requests. Furthermore, supervisors should not be aware of their subordinate’s medical condition or disability, because it can affect how they treat the employee moving forward. The FMLA has very technical requirements on how to respond to a leave request with fixed short deadlines—the clock starts to run when the employer’s designee is alerted to the employee’s need for leave. The employee does not need to use the term FMLA to trigger this countdown—they just need to alert the designee of a qualifying condition and their need for time off. Examples include:
“I’m so happy to share my good news—I’m pregnant, and just past my three month point.”
“I just want to let you know that I have my foot surgery scheduled for April 1, and I will probably need to be off for a few days.”
“My husband has back surgery on May 1, I’m not sure what recovery is going to look like but I may need a few days off.”
“I’m sorry my work has been delayed, but I have some personal issues triggering my anxiety—my counselor even said I should take some time off to avoid it getting worse, but I know we’re understaffed right now.”
Realistically, employees may be sharing this information just to keep the supervisor in the loop or because they’re venting, however the employee statements above are sufficient to to trigger the FMLA notice requirements, which most supervisors will not recognize. Just as you do with harassment complaints, you want a clear, defined process for employees to follow when they are asking for an accommodation or FMLA—one that preserves their privacy, and is likely to result in a legally appropriate response by the employer.
Having a Wishy-Washy or Incomplete Harassment Internal Reporting Policy
Your internal harassment reporting policy should be specific, targeted and cover all employees (including HR and the CEO)
For the same reasons as those listed above, don’t give employees the option of where or how to report unlawful harassment. All harassment complaints should be reported to experienced HR personnel, not managers, supervisors, or other non-HR personnel. It’s in every employer’s best interests to ensure that competent HR personnel receive reports of unlawful harassment. This ensures that complaints are taken seriously, and measures are immediately implemented to protect the victims without waiting for a full investigation. Ideally, employees should be instructed to report unlawful harassment or discrimination by mail, email, or by calling a complaint hotline that records or transcribes all calls. This way the employer is not hearing second-, third-, and fourth-hand accounts of complaints which may not actually reflect the content of the original complaint. Finally, make sure you have a reporting avenue for complaints against the HR team and senior personnel—a reporting procedure that instructs employees to alert the CEO’s subordinate of any harassment complaint against the CEO is entirely ineffective from both a practical and legal standpoint.
Other More Obvious Common Handbook Mistakes
The mistakes identified above are usually the more subtle mistakes that even experienced HR personnel can overlook, but there are many other more obvious mistakes that are often much more apparent
I have reviewed many employee handbooks in my time and I’m often caught off guard by the amount of more obvious mistakes in handbooks, which are usually the result of HR’s failure to thoroughly scrutinize the full final handbook. These mistakes include:
Unlawful policies. Classic examples of this include no policy carveouts for granted ADA-accommodations such as advising employees they will be terminated if they fail to return from FMLA leave on time.
Inconsistencies within the Handbook: Needless to say, all policies and procedures in the handbook must be consistent with one another otherwise, managers are confused about enforcement and employees don’t understand employer expectations. If you have departmental policies outside of your handbook, you must also ensure that the handbook does not contradict these policies.
Using AI to Draft your Handbook: While AI can be a valuable tool, you would need to significantly limit a lot of its broad training and substantially expand its company-specific training to ensure that the final product is actually effective. The amount of work this would require is usually as much or more as a human reviewing and/or drafting the handbook. Also, in my experience, AI drafts handbooks with lots of words and very little useful information—instead providing a range of approaches to various issues and other vague information which can come back to bite you.
Ignoring the Demographic Makeup of your Employees when Drafting your Handbook: This is particularly important if you have employees with a diverse range of national origins, or significant diversity in education among your workforce. First and foremost, if your workforce has a lot of diversity of any sort, you need to address that in your handbook and ensure you have policies that speak to common issues your workforce faces due to this diversity. E.g. Overtly advising supervisors that mandating an English-only workplace, or dress codes that exclude certain hairstyles, is unlawful discrimination. Secondly, when people have a broad range of perceptions on professional norms, you need to proactively address this. For example, ensuring your harassment policy overtly states that people from different cultures engage in courtship differently and that rejection accompanied by a pleasant smile in response to a request for a date does not mean you should feel free to aggressively pursue the object of your affections.
…and, speaking of dating policies: Make sure your dating policy complies with your conflict of interest policy and harassment policy. Plus, it’s okay to say employees are not permitted to engage in romantic pursuits in the workplace. I know this might be unrealistic in practice, but the handbook is there to protect the employer and give employees specific information on what they can and can’t do. A no-dating policy is usually the safest type of company dating policy.
If you want assistance in drafting or overhauling your employee handbook, (or other HR help or HR outsourcing), please contact us for a no-cost consultation on your existing handbook and how to best modify it to address your current workforce challenges.
