T HE E MPLOYEE S G UIDE TO THE G ALAXY : H ANDBOOK P ITFALLS Susan - - PDF document

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THE EMPLOYEE’S GUIDE TO THE GALAXY: HANDBOOK PITFALLS

Susan Stahlfeld and P.K. Runkles-Pearson I. WHAT SHOULD BE IN YOUR HANDBOOK? A. Discrimination, harassment, retaliation, and reporting procedures. Policies describing and condemning discrimination, harassment, and retaliation, and providing methods for reporting, are critical weapons to defend discrimination claims. They should be part of every employment handbook. 1. Whenever possible, list protected classes specifically. Handbooks should list the classes that federal, state, and local laws protect and specify that the employer also prohibits discrimination against legally protected classes not

• listed. But employers should avoid relying on that catchall clause and update the list of protected

classes as much as possible. Failure to list a protected class could expose the employer to the argument that it failed to protect the omitted class. In Oregon, the Bureau of Labor and Industries maintains a helpful list of classes protected by federal and Oregon law at http://www.oregon.gov/BOLI/TA/docs/T_FAQ_Protected_Classes.pdf. The Washington Human Rights Commission’s website at http://www.hum.wa.gov/index.html is a helpful Washington resource. The list of protected classes is constantly changing. For example, the Office

• f Federal Contract Compliance Programs recently released a directive explicitly clarifying

that federal contractors are expected to prohibit discrimination based on gender identity

• r gender transition. Directive 2014-02,

http://www.dol.gov/ofccp/regs/compliance/directives/Directive_2014-02_508c.pdf. 2. Include a specific reporting policy, but consider carefully who should receive reports. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), the Supreme Court held that an employer may avoid liability for hostile-work-environment claims if (a) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of “protective or corrective opportunities” that the employer provided. This defense can absolve employers of liability for hostile-work-environment claims based on sex, race, or other protected classes, if those claims do not involve tangible employment actions by supervisors. So the Faragher/Ellerth defense can have tremendous value—and employment handbooks are the most common and most beneficial place to describe the “protective or

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corrective opportunities” necessary to invoke it. It is valuable to have reporting procedures for claims other than harassment, although the technical defense applies only there. Juries, judges, and administrative officers who decide discrimination and retaliation claims often base decisions

• n whether an employee has been treated fairly, whether they admit it or not. Employers that

prohibit discrimination, harassment, and retaliation, promptly investigate claims, and take steps to correct bad behavior are less likely to be seen as having invidious motives themselves. Handbooks should not only encourage employees to report discrimination, harassment, and retaliation, but also provide specific direction about where to report. But employers should carefully decide which managers should receive reports. The group should not be too small (for example, only a supervisor), because this may prevent employees from reporting to those who cause them discomfort or who may be part of the complained-of behavior. Neither should the group be too large. Recommending reporting to “any member of management” in a large organization could increase the possibility of lost complaints. Reporting should be at minimum to management (or a subset of management) and to human resources, and the managers who will receive complaints should be carefully trained about the importance of passing the complaints along. 3. Define and describe discrimination, harassment, and retaliation in terms that your workforce will easily understand. Handbooks should bolster evidence of “protective or corrective opportunities” by clearly defining discrimination, harassment, and retaliation and prohibiting it absolutely. (Many policies provide detailed definitions but forget to provide the basic prohibition!) Definitions should include specific examples of prohibited behavior. Different employers should consider including examples that will resonate with their particular workforces. 4. Assure employees that you will investigate without retaliation and take appropriate corrective action. Providing “protective or corrective opportunities” includes telling employees how the employer will respond to complaints. Such a statement should at least:  assure employees that the employer will take prompt and appropriate action, including investigating as necessary;  reinforce the employer’s policy against nonretaliation; and  describe possible consequences, including the possibility that offenders will be disciplined up to and including termination. B. At-will-employment statement / contractual disclaimer. A handbook statement that employees are “at will” (and so may be terminated or leave at any time or for any reason) defends against claims that the employer has a contract with an employee on terms more generous than the law provides. The handbook should also state explicitly that the handbook itself is not a contract. It should not state that the employee agrees

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to be bound by the terms of the handbook; such language contradicts the assertion that the handbook is not a contract! Employers should take care in formulating these statements. In recent years, the National Labor Relations Board (the “NLRB”) has challenged “at will” statements that, in its view, discouraged employees from bargaining collectively through a union for a contract with the employer. For example, one challenged statement included the assertion that “the at-will employment relationship cannot be amended, modified or altered in any way.” But in a recent memorandum, the NLRB Associate General Counsel approved a clause that stated: Nothing in this [Handbook] changes this at-will relationship, guarantees you a benefit, creates a contract of continued employment or employment for a specified term, or any contractual obligation that conflicts with the [employer’s] policy that the employment relationship with its employees is at-will. No representative of [the employer] other than a[n employer] executive has the authority to enter into any agreement for employment for a specified duration or to make any agreement for employment other than at-will. Any such agreement that changes your at-will employment status must be explicit, in writing, and signed by both a[n employer’s] executive and you. The NLRB’s concerns should not cause employers to remove “at-will” statements

• r contractual disclaimers. But employers should avoid indicating that the employee is somehow

barred from having a contract in the future, or that the employee is the only person who can sign a contract with the employer. C. Handbook acknowledgments. All of an employer’s hard work in preparing a handbook is for naught if there’s no evidence that an employee received it. So handbook acknowledgments are essential in most situations in which employees and employers conflict. Acknowledgments should be simple and direct, stating only that the employee has received and read the policies. Employers should take care to obtain updated handbook acknowledgments when they update their handbooks. D. Timekeeping policy. Wage-and-hour laws strictly require an employer to pay an employee for all time that the employer “suffers or permits” the employee to work, even unauthorized overtime or time that an employee recorded improperly or not at all. See, e.g., Chao v. Gotham Registry Inc., (quoting with approval Department of Labor rule at 29 C.F.R. § 785.13, “‘[I]t is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. . . . The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.’”) (emphasis in Chao).

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It is a risky and unpredictable matter to challenge an employee’s assertion that the employer has “suffered or permitted” work. Compare Chao, 514 F.3d 280, with Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984) (determining, under the Portal to Portal Act, that employer was not responsible for paying employees for minor preshift work when employees arrived early on their own accord and for their own convenience, work could have been performed during regular shifts, and employer sent a letter informing employees that there was no need to arrive early). The facts of cases in which employers prevail in this area are so specific that employers would be ill advised to rely on such cases when developing policies. Instead, an employer’s safest recourse is disciplining an employee for failing to follow policies about recording time or obtaining approval for overtime. So a good timekeeping policy is essential. Policies should:  Direct hourly employees to record all time worked, including time worked

• ff premises by phone or computer, and time after hours;

 State clearly how employees should record their time;  Set reasonable deadlines for employee time reporting;  Define who can approve overtime;  Define how overtime is approved (authorization in writing is easiest to prove or disprove);  Inform hourly employees that they may work only approved hours, whether regular time or overtime; and  State clearly that employees may be disciplined for failing to follow the policy. E. Bulletin-board / acceptable-use policies. Bulletin-board and acceptable-use policies clarify the ways in which employees may use an employer’s physical and electronic workplace. These policies containing such limitations are essential if an employer is to conduct business without fear of employee privacy-related claims and to limit disruptions caused by nonwork activities such as outside solicitations and employee personal business. 1. Electronic acceptable-use policies should inform employees that their communications are not private, do not belong to them, and may be monitored. Ensuring that employees have no reasonable expectation of privacy in electronic materials is usually the primary purpose of an acceptable-use policy. While it is particularly important for public employers, who are subject to constitutional protections on search and seizure, both private and public employers could face tort claims from employees who believe that the employer has violated their privacy. In either case, an up-front notice that e-mail or

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• ther electronic resources (such as shared drives, websites, etc.) are not private is a first line of

defense. 2. Policies, and their enforcement, must not discriminate against union activity. The National Labor Relations Act (the “NLRA”) prevents employers (even employers without unions) from discriminating against union-related activity. Although the NLRB and the courts may disagree on whether particular employer actions discriminate, they agree on the basic principle: Any limitations that an employer imposes on other activities in the workplace should apply equally to union activity. Generally, an exception is allowed for e-mails about employer-sponsored charitable campaigns, such as support for the United Way. Several decisions illuminate how detailed this discussion can be. In Guard Publishing Co., 351 NLRB 1 110 (2007), the employer’s policy prohibited employees from using the company e-mail system “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” An employee was disciplined for sending out three separate union-related e-mails: one in which she challenged the employer’s characterization of recent union-related events, and two in which she encouraged

• ther employees to participate in various union activities. The Administrative Law Judge, the

NLRB, and the District of Columbia Circuit Court each had different views on whether this discipline was discriminatory. The ALJ determined that the employer had discriminated against the union by prohibiting union-related e-mail but allowing other nonwork e-mail, such as messages containing jokes, offers of sports tickets, or baby announcements. The ALJ rejected, as a distinction without a difference, the employer’s contention that those e-mails involved the needs of individuals, rather than organizations, and that it had treated the union like all other

• rganizations.

The NLRB determined that the discipline about the first e-mail, but not the second two, was discriminatory. As to the first e-mail, the NLRB noted that the policy prevented only “solicitations” and that offending e-mail was a discussion, not a call to action. Therefore, the employer had improperly disciplined the employee for acts that the policy did not prevent, and that other employees had been allowed to do in nonunion contexts. But as to the other two e-mails soliciting participation in union activities, it was proper for the employer to draw a line between solicitations on behalf of an individual (jokes, baby announcements, etc.) and communications on behalf of an organization. Because there was no evidence that the employer had ever allowed other organizations to solicit (except for the employer’s United Way campaign), the employer did not discriminate in disciplining this employee. The union and the company, both unhappy with the mixed decision, appealed. The appeals court found that discipline as to both e-mails was discriminatory, but

• n different grounds than held previously. It agreed with the NLRB that discipline about the first

e-mail was discriminatory because the employer allowed other nonsoliciting e-mail. It

• verturned the NLRB as to the soliciting e-mails, agreeing with the ALJ that the distinction

between organizational and personal solicitations was irrelevant. But it also determined that

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even if the distinction were relevant in the abstract, it would not be relevant here because the employer never invoked it before the dispute. In the court’s view, the policy’s prohibition on e-mail regarding “outside organizations” did not demonstrate that the employer in fact had a policy against organizationally related e-mail, as opposed to personally related e-mail. And the court noted that the employer had not stated that the discipline was for “organizationally related” e-mail—instead, it had disciplined the employee for sending e-mail regarding “union/personal business.” In 2013, the NLRB issued another decision about e-mail, Weyerhaeuser Co., 359 NLRB No. 138 (2013). Although that case has since been overruled for unrelated procedural reasons, its reasoning is interesting. The company’s policy restricted e-mail use to “business purposes only” and allowed limited personal use with managerial consent. Union representatives had regularly used e-mail for union business with managerial consent. But the employer issued a notice informing employees that they were spending excessive time during working hours discussing union business over e-mail, and that the employer would reconsider its decision to allow e-mail use if they failed to trim e-mail use. The NLRB determined that the policy restricting e-mail use to “business purposes

• nly” was lawful, but that the notice that followed was discriminatory because it focused only on

e-mail use for union purposes. The NLRB also noted that the e-mail use that the company was complaining about was partially union-related and partially personal, including messages about family issues or forwarded jokes. In the NLRB’s view, the company discriminated by singling

• ut only the union-related messages, and not the others.

3. Public-employer policies must comply with constitutional free-speech protections. Public-employer acceptable-use policies are subject to constitutional protections regarding free speech. Such policies should:  Avoid banning broad, vague categories of content such as communications deemed “offensive” or “demeaning”; instead, prohibit material that violates the law or targets particular individuals or groups in a way that impairs their full participation in the workplace;  Avoid banning material with specific content, such as “commercial” or “political” communications; instead, affirmatively define the reasons why the electronic or physical resource is being provided; and  Avoid banning material based on viewpoint, such as pro-union, anarchist, racist, or anti-employer communications. Public employers should consider creating (in handbook policies or elsewhere) detailed definitions of the purpose for which electronic and physical resources are provided to

• employees. For example, the specific purpose for employer e-mail lists, websites enabled for

forums or chats, or basic bulletin boards may be posted and defined. In many cases, so long as the stated purpose is content- and viewpoint-neutral, and if an employer polices the forum

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consistently, the employer can find success in banning content that is inconsistent with the stated

• purpose. While any action taken to ban material may be risky, employers are on safer ground

creating well-defined and well-policed spaces for communication. Acceptable-use policies for all public employers, and especially public educational institutions, are challenging. Legal review may be particularly helpful. II. WHAT SHOULD NOT BE IN YOUR HANDBOOK? A. Directive not to discuss salary information, other terms and conditions. It is not uncommon to find employer policies, whether in a handbook or other form, that prohibit employees from discussing their pay or other terms and conditions of employment, under threat of discipline or termination. Such policies, however, can be unlawful under the NLRA—including for nonunion employers. Contrary to what many employers believe, the NLRA can apply in workplace settings that do not have collective bargaining agreements or unions. The NLRA protects against “collective activities” by employees regardless of whether those collective activities are related to union-organizing. 1. Do not have policies prohibiting nonmanagement employees from discussing pay. Among the employer policies that the NLRB and courts have found to violate the NLRA are policies that prohibit employees from discussing pay. See, e.g., Starbucks Corp., 354 NLRB 876, 893 (2009) (“It is well settled that rules prohibiting employees’ discussion of their wages, hours, or other terms and conditions of employment violate Section 8(a)(1) of the Act.”); Parexel Int’l, LLC, 356 NLRB No. 82 (2011) (employer that terminated an employee who it believed was going to start discussing perceived wage discrimination violated Section 8(a)(1) even though employee had not yet begun the discussions). Note: Employers can prohibit discussions of supervisor and executive

• compensation. Compensation of supervisors and executives is generally considered a trade

secret, and if employers have policies restricting disclosure of proprietary financial information, these policies could lawfully apply to compensation of supervisors and executives. 2. Do not have broad or blanket policies prohibiting nonmanagement employee discussions of working conditions. An employer cannot have a blanket prohibition against nonmanagement employees’ discussing working conditions, and that includes a prohibition on discussions

• ccurring on the employer’s premises. Employers can generally prohibit such discussions while

employees are working, but not during breaks, in the locker rooms while changing to go home, etc. Employers may be able to prohibit employees from discussing working conditions with customers or with each other in areas where customers are most likely to be found, but such

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a policy must be carefully crafted to avoid being overbroad. For example, the court affirmed the NLRB’s finding that Section 8(a)(1) of the NLRA was violated by this policy: “Never discuss Company issues, other employees, and personal problems to or around our guests. Be aware that having a conversation in public areas with another employee will in all probability be overheard.” Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249, 1253 (10th Cir. 2005). The NLRB interpreted the second sentence as prohibiting conversations in all “public areas” rather than only in the casino’s gambling areas and adjacent aisles and corridors frequented by customers, and therefore found it to be overbroad. While the court did not necessarily agree with this particular conclusion, the court found that the first sentence was overbroad because the presence of a single guest could transform an area where employees had a right to have discussions about work conditions into a place where such a conversation was prohibited, and an employer could not “adopt a no-discussion rule that follows each of its customers.” Id. at 1254. B. Inflexible attendance policies. Many employers have attendance policies that set forth possible adverse consequences if an employee has too many tardies or absences. Many of these policies are being challenged when applied to particular situations. An employer can still have an attendance policy, but the policy should have some flexibility built into it, and the employer should consider whether proceeding with an adverse employment action (warning, suspension, termination) under the policy is appropriate or opens the employer up to possible liability. 1. Is attendance an essential job function? As a preliminary matter, an employer should decide whether regular and on-time attendance is an essential job function for a particular job. While many, perhaps even most, jobs do require regular and reliable attendance, not all jobs do. If a position requires regular attendance, the job description for that position should say as much. 2. Absences related to an employee’s own medical conditions may need to be excused as a reasonable accommodation of a disability. Attendance policies should be flexible enough to account for tardies or absences that are related to a disability. Whether an employer has to excuse all tardies or absences related to a disabling medical condition, or only some, or none, or take some other action in light of the tardies or absences (perhaps rearrange the employee’s work schedule?), will depend on the facts and circumstances of any particular situation and what would be a reasonable accommodation under those facts and circumstances. A flexible attendance policy gives the employer more

• ptions in responding to requests for reasonable accommodations.

If an employee does have absences related to a disability and an accommodation that results in an exception to the attendance policy is granted, the employer should carefully document the accommodation and the reasons for that accommodation.

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3. Attendance policies need to have exceptions for absences protected by the Family Medical Leave Act or similar laws. Most employers have exceptions written into their policies for absences that are covered by the Family Medical Leave Act (the “FMLA”), but do not always remember to include absences for leave protected by other laws, either federal or state. For example, under the Washington Family Care Act, employees have the right to take any paid leave available to them for the purposes of caring for (a) a child with a health condition that requires treatment or supervision, (b) a spouse, parent, parent-in-law, or grandparent with a serious or emergency health condition, or (c) a child 18 years of age or older with disabilities that make the child incapable of self-care. The Washington Department of Labor & Industries (the “DLI”) recently amended its guidelines to clarify its position that an employer may not take any disciplinary action against an employee using paid leave for reasons set forth under the Family Care Act, even if the absence violates the employer’s attendance

• policies. See DLI ES.C. 10 (amended Aug. 6, 2014).

4. Include provisions for advance notice when reasonable. One way to make an attendance policy enforceable is to require employees to provide advance notice of absences when they are able to do so. An employer is usually able to enforce an attendance policy even when leave is otherwise protected if an employee could have given, but failed to give, the required advance notice. For example, if an employer requires three days’ advance notice of an absence, and an employee knows that he has a doctor appointment in two weeks but fails to notify the employer of the absence until the morning of the appointment, the employer can probably count the absence against the employee for failing to give the required advance notice, even if the absence would otherwise be protected leave or a reasonable accommodation of a disability. An advance-notice requirement should be for a reasonable amount of time, and should also include a general provision that even if that specified amount of notice cannot be given, the employee needs to give whatever advance notice is reasonable under the

• circumstances. Obviously, an advance-notice requirement could not be enforced against an

employee whose protected absence was related to an emergency situation in which advance notice could not be expected. 5. What about “no-fault” or “blind” attendance policies? Many employers believe that if they have “no-fault” or “blind” attendance policies in which they do not formally ask an employee the reasons for an absence, then they can have inflexible policies that are rigidly applied. That belief may well end up with an employer being held liable if it institutes discipline against an employee under the attendance policy. As a practical matter, even under “no-fault” or “blind” policies, the employer is

• ften given sufficient information by the employee from which it could realize that the absence

may be protected leave. For example, most employees don’t simply call their employer in the morning and say that they are not going to come to work that day. Rather, they say something like: “I’m not feeling well and I can’t work today” or “My son is really sick, so I need to take

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him to the doctor; I’ll be late.” Either of these statements could put an employer on notice that the absence is protected leave. Or the employer could have general knowledge that an employee has a chronic condition and that any absence could be protected leave even if the employee does not specifically say so for every single related absence. One option to help protect against liability when applying a “no-fault” or “blind” attendance policy is to have a process in place under which the employee can notify the employer that a particular absence is for a reason that is protected, so that the employer can remove that absence from consideration under the policy. If the employee then fails to give the notice to the employer, at least the employer can say that it relied on the employee’s failure to tell it that the leave was for a protected reason. C. Rigid progressive-discipline policies. Most employers have progressive discipline policies for dealing with employee conduct and/or performance. At the same time, most employers prefer to retain the discretion to implement any level of discipline, including immediate termination, as the employer sees fit given the circumstances involved. It is important that the employer’s policies not be written in a way that takes that discretion away from the employer. 1. Progressive-discipline guidelines. In writing the progressive-discipline section of the handbook or other policy statement, it should be made clear in writing that the outlined procedures are guidelines only and that the employer always retains the right to impose whatever discipline it chooses. The policy should use language such as: “The Company reserves the right to apply whatever level of corrective action it deems appropriate under the circumstances, up to and including immediate termination of employment.” 2. Nonexclusive list of reasons for immediate termination. Based on past experience in their industry or with their workforces, many employers include a list of conduct or actions that will automatically lead to termination. It is preferable to say that the actions will “usually” lead to termination, and to also explicitly state that the items listed are not the only actions that can lead to immediate termination. 3. No statements (oral or written) that contradict or limit the employer’s right to immediately terminate. At times an employer may respond to a particular situation by issuing a memorandum or one-page policy statement. Likewise, a manager or supervisor may make oral statements regarding a particular situation. It is important that neither written nor oral statements contradict the nonmandatory disciplinary language contained in the handbook, because a court may read such subsequent written or oral statements as the employer’s voluntarily limiting its discretion to impose whatever discipline it deems appropriate in the particular situation.

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D. “Promise” or “mandatory” language. 1. Specific promises. Many employers include language that can be construed as a promise of specific action without realizing that this is what they are doing. The intention was to indicate the usual course of action that an employer will take, but if the policy does not clearly reserve the employer’s discretion to act in another way, the employer is at risk of having to comply with that policy statement in every situation. For example, if an employer promises that it will pay out any accrued but unused vacation time at termination, without any qualifying language, it may be found by a court to have bound itself to make that payment even if an employee was terminated for for gross misconduct. The DLI even tells employees on its website, “If the business agrees to give [vacation] benefits and then does not do so, workers may sue the business in a private legal suit in small claims court or through a private attorney.” http://www.lni.wa.gov/WorkplaceRights/LeaveBenefits/VacaySick/. The Oregon Bureau of Labor & Industries has a similar warning for employers: “If an employee has a reasonable expectation of receiving unused vacation pay based on your representations and policies, a court would likely grant the employee’s claim for unpaid wages and penalties.” http://www.oregon.gov/boli/TA/pages/t_faq_tabenefits.aspx. 2. Mandatory language. If a handbook uses mandatory language (e.g., “will” or “shall”), a court may hold that the employer is required to abide by such language. For example, in Duncan v. Alaska USA Federal Credit Union, Inc., 148 Wn. App. 52, 199 P.3d 991 (2008), the employee came to work for the employer in 2003 as a highly paid executive with a compensation package specific to that employee. Over the next four years, the employer insisted on at least six different revisions to the compensation package, generally revising the employee’s salary and overall compensation downward. The employee sued for breach of contract, relying on the employer’s general employee handbook, which contained this provision: “Salary reviews and adjustments will occur no more frequently than annually,” with specific exceptions, only one of which might have applied to this employee. The employee was allowed to proceed to trial on his claim that he was owed additional compensation based on the

• riginal agreement, since the various revisions were inconsistent with the employer’s handbook.

E. Anything that the employer does not actually need or is not actually following. It is not unusual for employers to create a handbook and continue to use it for years without revision or review. This can create problems for employers if they subsequently change their practices. Likewise, employers sometimes include legal terms that are unnecessary

• r confusing, and can also become out of date over time. When was the last time you took a

good look at your handbook?

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1. Don’t include unnecessary legalese. It has recently been popular to include legalese in handbooks, such as the technical definitions of “exempt” and “nonexempt” employees, or a detailed explanation of particular exemptions from overtime. Most of the time such technical legalese is not necessary and is not desirable in an employee handbook. Unless the employer is required to have that language in the handbook, it should be removed. (Hint: Employers don’t need to include the technical definitions of “exempt” and “nonexempt” in a handbook—they just make sure that they comply with the law.) 2. Does the employer really want that person to be designated to receive complaints? It’s important for an employer to have avenues available to employees to make complaints regarding harassment, pay issues, etc. But the employer needs to make sure that everyone listed as a person to whom an employee can take a complaint is really someone it wants receiving complaints. For example, if a handbook says that employees may take a complaint to “any supervisor,” then the employer will be held to have knowledge of any complaint made to any supervisor, regardless of whether that supervisor is actually the supervisor of the complaining

• employee. This can be problematic if the complaint is one that needs to be acted on by the

employer and the supervisor receiving the complaint did not realize it. Of course, all supervisors should know what to do if they receive a complaint from any employee, but a handbook should have a more limited list of persons to receive complaints than “a supervisor.” 3. Anything that the employer doesn’t actually do. Make sure that the handbook doesn’t say that the employer will do something that it either is no longer doing or has never done. For example, a handbook should not say that tardies or absences must always be reported in a phone call to the employee’s direct supervisor if the employer actually allows employees to report a tardy or absence to the office manager or via a text message. Likewise, it should not say that salary increases will be granted on the employee’s anniversary date if they are actually granted on a specific calendar date for all employees, etc. One of the more common disconnects in handbooks relates to processes that have changed in practice with some of the newer technology changes. For example, if a handbook says that employees must fill out a paper time card but the practice is now to log time via a swipe card or other electronic means, the handbook needs to be updated. 4. Anything that doesn’t actually apply to the employer. If an employer has fewer than 50 employees, or locations that have fewer than 50 employees in a 75-mile radius, its handbook should not include all the FMLA language—a court could find that even though the employer would not be required to comply with the FMLA

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under the terms of the statute, by including all the provisions in its handbook the employer voluntarily obligated itself to comply with them. Likewise, states have different legal requirements for employers. Multistate employers need to comply with the laws of the states in which they have employees with regard to those employees, but that does not mean that they have to extend the required obligations of

• ne state to the employees of a different state. Many times a multistate employer will choose to

do so anyway in order to have its policies apply uniformly to all employees, but there may be policies that an employer does not want to apply across state lines. Unless those state-specific laws also require an employer to tell its employees about those laws in its written policies, they should be left out of the handbook. If the employer must include those state-specific laws in its written policies, consider having separate handbook addendums for each state that addresses the legal obligations that pertain only to that state.

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