Employee Handbooks 101: Dos and Don'ts For Every Employer

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This guide explores dos and don’ts for every

employer when it comes to drafting and

implementing employee handbooks in the

workplace. It explores the following topics:

 Considering Whether to Have an

Employee Handbook

 Assembling an Employee Handbook

 Determining What Topics to Include in an

Employee Handbook

 Drafting the Provisions of an Employee

Handbook

 Finalizing and Distributing an Employee

Handbook

 Creating an Employee Handbook as a

Multistate Employer

 Updating an Employee Handbook

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Employee Handbooks 101:

Dos and Don’ts For Every Employer

1

Author: Beth P. Zoller, XpertHR Legal Editor

One of the most common workplace documents is an employee handbook. Sometimes referred to as an employee manual, staff

handbook, or personnel manual, an employee handbook is a common mechanism for promoting your workplace policies,

procedures and rules and an effective way to convey to employees what is expected of them as employees of your company in

terms of their rights and obligations.

In fact, according to a survey by Laurdan Associates, Inc. and Ceridian Employment Law Compliance Leader conducted in 2010,

91% of participants indicate that their organization developed and promulgated HR policies and procedures and 89% specifically

used an employee handbook to communicate such policies.

Despite the fact that employee handbooks are so widespread, there is some measure of risk in releasing an employee handbook

and having you commit yourself to workplace policies in writing. If you choose to have an employee handbook, it is critical to

follow through in implementing and enforcing it. You should also realize that what is not included in a handbook is almost as

important as what is included. Additionally, in recent years, the government has been scrutinizing employee handbooks to see if

they unlawfully restrict an employee’s right under the National Labor Relations Act (NLRA) to engage in protected concerted

activity or collective action to improve their wages, hours and working conditions. This also may make you think twice about

developing and implementing an employee handbook. Despite this, it is still of utmost importance to have an employee

handbook because when executed properly, the benefits far outweigh the risks.

Considering Whether to Have an Employee Handbook

There are many good reasons why you may want to develop and implement an employee handbook. Aside from the fact that a

handbook allows you to document, compile and retain all employment-related policies in a single document, it can also create

uniformity and consistency and minimize the risk of a misunderstanding between supervisors and employees by providing clear

guidance on company policies. You should keep the following in mind when determining whether or not to have an employee

handbook:

DO

DON’T

• Consider having a handbook to provide employees

with notice of their job duties and responsibilities

as well as their rights and benefits.

• Ensure expectations of employees with respect to

employee conduct, behavior, performance

requirements, attendance and discipline are

communicated clearly and consistently.

• Have a handbook to convey your mission, history,

purpose and goals.

• Consider the language needs of employees when

deciding whether or not to have a handbook.

• Use the handbook as a way to include policies that

minimize the potential for liability by showing that

you comply with the law.

• Have the same employee handbook for all

employees if they are subject to different rules and

workplace policies.

• Release a handbook unless it is legally compliant and

includes all of the policies an employee handbook is

obligated to provide.

• Try to have a handbook to cover all employment-

related situations. Leave some room for flexibility

when managing employees.

2

Assembling an Employee Handbook

Developing an employee handbook can be a challenging process as there are many issues that should be taken into account. Be

sure to review all prior contractual commitments as well as prior employment policies that were instituted. Further, you should

consult with key players in your company as well as legal counsel. The following are some helpful tips:

DO

DON’T

•

Review and incorporate all prior writings,

practices, commitments and obligations on

employment-related topics such as those found

in preexisting policies and company memoranda.

• Incorporate summary plan descriptions or

promotional materials for benefit plans.

• Consider how collective bargaining agreements

and individual employment contracts will impact

the handbook policies.

• Consult with key members of your company such

as HR, benefits, payroll and supervisors who may

have input on employment policies.

• Research legal requirements and trends,

particularly on new and emerging areas. Consult

with experts where needed.

•

Use another company’s handbook without tailoring

it to your specific needs. No two employers are

exactly alike.

• Have a one size fits all handbook if different groups

of employees or departments require different work

rules.

• Forget to consult with IT and technology experts

with regard to social media and Bring Your Own

Device (BYOD) policies.

3

Determining What Topics to Include in an Employee Handbook

Determining what topics you should cover in an employee handbook is a complex task. The topics you choose to remain silent

about are almost as important as the topics you choose to address and incorporate into workplace policies. In determining which

policies to include, you should take the following into account:

DO

DON’T

•

Include a disclaimer that is clear and conspicuous and

states that the handbook is not a contract, does not

alter employment at-will status and is subject to

change.

• Retain the right to change employee wages, hours

and working conditions without consultation and

agreement.

• Begin with a brief overview of your business or

organization and the main products or services it

offers as well as your goals and values.

• Make sure the discrimination and harassment

sections of the employee handbook cover all

categories protected by federal, state and local law

depending on the jurisdiction you operate in. It may

be best practice to be over-inclusive as this will

demonstrate that you foster a tolerant and diverse

workforce, but be sure to implement the policy

consistently.

• Include a multi-channel complaint procedure that will

enable employees to bring complaints to HR and

other accountable employees.

• Let employees know how they will be paid, what

schedules they will be expected to work and whether

or not they will be entitled to time off and leaves of

absence as well as meal and rest breaks. Employees

should also know how overtime is handled and how

they will be reimbursed for any business expenses.

• Include information on employee conduct and work

rules.

• Notify employees how their work performance will be

evaluated and reviewed.

• Aim to protect your company and the workplace by

including policies on workplace safety and security as

well as workplace violence.

• Include information about the benefits generally

available to employees.

•

Be too specific when discussing employee benefits

as these may change from year to year.

• Forget to include any policies you are legally

obligated to provide, such as FMLA.

• Overlook differences in federal, state and local law.

• Neglect to include information on leaving the

company and how resignations, terminations and

retirements will be handled.

• Forget to be specific when describing the

confidential information and trade secrets you seek

to protect. Consider using additional confidentiality

agreements and non-compete agreements to further

memorialize employee obligations.

• Be too detailed when discussing what conduct may

be grounds for discipline. Make the list of unlawful

conduct non-exhaustive and leave room for your

discretion.

• Commit to a rigid disciplinary policy. Be sure to

retain the ability to discipline employees when

warranted.

4

Drafting the Provisions of an Employee Handbook

When it comes time to draft and prepare the policies to be incorporated into an employee handbook, there are many issues you

should take into account such as the format, organization and tone it will be written in. The style of the handbook should be

tailored to the nature of your business and your employees. For some employers, an employee handbook in a standard format

may be most suitable. For others, a handbook written as frequently asked questions may be more appropriate. Here are some

issues you should consider:

DO

DON’T

• Make the handbook user-friendly and write it in a

casual readable tone that is easy to understand.

• Consider involving supervisors and possibly

employees in the process of drafting the

employee handbook.

• Place the policies in the handbook in an orderly

manner, grouping similar policies together and

making them easy to find. A table of contents and

index may make it easier to navigate.

• Write the policies in clear and unambiguous

language, remembering that employees are the

intended audience.

• Proofread the handbook policies and review

multiple drafts before it is finalized. Get multiple

parties involved in the process of review.

• Avoid using language that may lead employees to

believe their employment is not at-will and they

may only be disciplined or terminated for cause.

• Realize that the handbook may serve as evidence

in either supporting or defending against an

employment law claim. Be prepared to stand

behind the policies in the employee handbook.

• Review all policies to see if the policy could be

construed as infringing upon the employee right

to engage in protected concerted activity.

• Go into a great deal of detail on policies and be too

specific which will create the need for the handbook

to be constantly updated or thoroughly overhauled

on a frequent basis. Aim to keep policies general.

• Get caught up in legal and HR jargon. Use everyday

language.

• Assume all employees will be able to understand the

handbook due to language barriers. If you have a

significant number of employees who do not read or

understand English, you may want to consider

translating the handbook into another language so it

can be understood by all.

• Have policies that conflict with or contradict each

other as this may be confusing for employees and

may lead to misinterpretation and possible litigation.

• Use language that makes too many promises or

guarantees on the employer’s part. For example,

instead of stating that you “will” or “shall” state that

you “may” or “will make every effort to” or “will

attempt to”.

5

Finalizing and Distributing an Employee Handbook

Once all policy provisions have been drafted and reviewed, it is time to finalize the handbook and distribute it. In doing so, it is

essential for you to obtain acknowledgement and consent from each employee indicating that the policies contained in the

employee handbook have been received, reviewed and consented to. Further, you should conduct training on the handbook and

all relevant policies so that employees and supervisors are familiar with it and understand it. The following are some issues to

take into consideration when finalizing an employee handbook and distributing it:

DO

DON’T

• Determine the best method of distribution based

on your particular workplace. For example, a

traditional print copy method may be best for

some workplaces while an electronic version may

better serve other workplaces by saving time and

expense in printing and updating.

• Make sure that all employees know how to

access the employee handbook at all times so

they know what is expected of them.

• Obtain a written acknowledgment and consent

from each employee acknowledging that they

have reviewed the handbook, read it and

understand its terms and provisions.

• Consider having employees specifically

acknowledge certain policies (i.e., discrimination,

harassment, confidentiality). You may want to

use these later when proving a policy violation or

proving that you followed workplace policy.

• Train supervisors, managers and employees on

the policies included in the handbook and how

the handbook will be used by your company.

• Be sure to abide by your obligations in the

employee handbook. Avoid promises that cannot

be kept.

• Forget to have the employee handbook reviewed by

an attorney to make sure it is legally compliant in all

aspects.

• Make the handbook so long and complex that

employees cannot understand it.

• Bury the handbook on your intranet so that it is

impossible to find. Make sure it is readily accessible

to all employees.

• Make policies so comprehensive that they will cover

every situation. Leave room for flexibility and

discretion.

• Forget to make sure the employee handbook reads

as one cohesive document, written in the same tone

with policies that do not conflict with each other and

are consistent.

6

Creating an Employee Handbook as a Multistate Employer

A multistate employer often faces unique challenges in creating an employee handbook. If you are a multistate employer

operating in different states and subject to various laws, you will not only need to cover federal law, but the law of each state

and municipality that applies to different employees. If you are a multistate employer, you should consider the following:

DO

DON’T

•

Adopt the approach that is best for your business

as a whole – either (1) implement uniform

policies across all states with the most lenient

employee rights and benefits, (2) provide a

general national handbook and state-specific

supplements or addendums to capture state and

local differences, (3) prepare a very general

handbook indicating that you will follow all

applicable federal, state and local laws or (4)

prepare a specific handbook for each jurisdiction.

• Be sure to address multistate aspects of topics

such as equal employment opportunity

discrimination and harassment, leaves, meal and

rest breaks, access to personnel files, workplace

accommodations, weapons in the workplace,

smoking and texting while driving.

• Take into account that states and municipalities

often change their laws at a much more rapid

pace than the federal government. Therefore,

policies with state and local law may need to be

frequently revisited and amended. Aim to keep

them more general if possible.

•

Forget to include state-required notifications or

municipal-required notifications in the employee

handbook if you are obligated to provide under state

or local law.

• Neglect to address state or municipal differences in

some way even if there is only one employee who

works in a particular state or city. You are obligated

to comply with the law.

7

Updating an Employee Handbook

Updating and amending an employee handbook to comply with the current law and to reflect the most up to date protections

can be an arduous task. Best practice is to review a handbook on an annual or semi-annual basis to see if any changes need to be

made or any policies need to be added based on changes within your company or legal developments. When updating and

amending an employee handbook, you should keep the following in mind:

DO DON’T

• Think of the handbook as a living document and

one that will evolve as law, society and your

business changes and develops.

• Review the current handbook to identify

inaccuracies and inconsistencies based on the

law or your business practices.

• Conduct research to identify changes in the law

as well as current trends that may affect

workplace policies. Decide if it is best to issue an

entirely new handbook or exchange outdated

policies for newer ones.

• Neglect to obtain updated consent and

acknowledgement forms indicating that employees

have received, reviewed and agree to abide by the

updated handbook policies.

• Make policies overly complicated, confusing and

detailed in attempting to revise old policies with new

information. Start fresh if need be.

• Forget to conduct training on the updated and

amended policies for both employees and

supervisors. Make sure to focus on any changes in

the handbook which will affect workplace practices.

8

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