If you practice transactional employment law, one of the most common tasks you will perform is reviewing an employment contract. The other one is drafting, reviewing, and revising an employment manual. The difference between doing a good job and a bad one, isn’t just between repeat business and a bad AVVO review. It can be the difference between a malpractice suit and clean insurance record.
A well-written employee manual can be your sword and shield in a prospective lawsuit.
That’s why, when you work on an employment manual, it’s important to keep a few things in mind:
The Manual Is Discoverable
If you're ever the subject of an employment suit, document requests will include requests for copies of any employment manuals or, if not specifically for those, for any documents describing, regulating, or pertaining to the terms of employment during Plaintiffs period of employment. This means you have to write the manual from a defensive crouch. Consider each paragraph as if it were evidence in a lawsuit where an action were filed against your client. Be cautious of language that can suggest animus, or language that is unclear. Further, you should consider seriously any language granting rights to employees, because those will be used against you.
There are two reasons you don’t want to show leeway to individuals: it can suggest favoritism, bias, or other evidence of discrimination, it can also disprove patterns of conduct and standard business practices.
The Manual Should Cover the Most Important Issues
Here is the upside of the discoverability of employment manuals. A well-written employee manual can be your sword and shield in a prospective lawsuit. They can be used as evidence of a uniform standard. They can be used as evidence of a corporate policy. They can be used as evidence of a disciplinary practice. Any rules that you intend to be “zero tolerance,” should be listed in the employment policy manual. All state and federally mandated polices, from OSHA safety, to mandatory rest and lunch breaks, to FMLA should be listed in the employee manual. Because then you can prove that you gave that information to your employee. Now, the fact something is in a manual isn’t dispositive, as we all know, something written down isn’t necessarily followed, but the inclusion in the manual is a good place to start as supporting evidence.
The Manual Isn’t an Employment Contract.
Even if an employee signs something saying they received the manual, that doesn’t mean that they are bound by what it says. They can be fired for violations, but not sued. A manual isn’t the place to include a non-disclosure agreement, a non-compete clause, or any other clause that would bind the employee after the end of the term of employment or permit the employer to seek damages unless there was independent tortious action or breach of duty or contractual obligation. If you want that sort of protection or duty, you need to have an employment contract. An employment contract is a separate document, and if there are people so enamored of my writing that they want me to go further, I can do a separate article on those and what they can, should and often do contain. But that’s a subject for another article.
A Manual can define acceptable conduct while they are employed and can provide a basis administrative actions while employed. It can provide bases for discipline, sanction, and termination for cause. It usually establishes that employment is “at will” and that cause is not required for termination.
The Manual Needn’t Cover Everything
A common mistake in employment manuals is attempting to cover every conceivable situation that might occur. Not only is it not necessary, it’s not recommended. A codified situation has less room for exceptions: i.e. if policy states “Any person using office resources for personal reasons will be terminated without exception” it looks like favoritism if your client says, “Jeremy took office supplies home to give his kid for school, who cares?” Any exemptions made to a published policy like that suggest there is leeway to any rule in the manual.
There are two reasons you don’t want to show leeway to individuals: it can suggest favoritism, bias, or other evidence of discrimination, it can also disprove patterns of conduct and standard business practices. Given that a major part of the evidentiary value of such documents lays in its ability to prove those patterns, it’s important that any patterns it evidences are actually patterns to which your client will hold.
This list isn’t comprehensive, nor is any singular point comprehensive. An entire article could be written on each of them. Each is worth remembering because a good manual can be the difference between transactional work and litigation.]'
If you don't want to write your own employee manual or just want help or someone to review the one you have, we're professionals. Call us to discuss your options and we can help.