So often, we hear this from our clients who use employment manuals drafted by attorneys or human resource managers, which were posted on the internet. Unfortunately, more often than not, the manual does not comply with the appropriate laws and is not narrowly tailored to meet the needs of the employer’s unique business. This could potentially cause significant problems and subject the employer to liability.
The following article outlines some of the important provisions to watch out for in these manuals. Regardless, you should consider consulting an attorney to ensure that your manual is in compliance with the law and reduces your liability.
Social Media
With the growing popularity of social media, employers are beginning to create social media policies to regulate their employees’ use of social media. In May 2012, the General Counsel of the National Labor Relations Board issued an opinion that limits the restrictions an employer can place on an employee’s computer and social media use. You will note from the opinion that employees’ free speech may not be limited. However, an employer can and should request or require that employees act in good taste when using the name of the company and never identify themselves as speaking for the company.1
Improper Grievance Procedures
Many “internet” manuals contain antiquated, progressive discipline provisions that alter “at-will” employment. These provisions require an employer to give the employee a reprimand, to place a notice in the employee’s file, and to put the employee on probation prior to termination. By placing this provision in the manual, it becomes contractual and prevents an employer from firing an employee on the spot for behavior that is simply unacceptable. One should not have to warn a waiter with a reprimand if it is his first offense should he be insolent with a customer or he steals money from the company. We recommend employment manuals state that all disciplinary action is in the discretion of management. The manual should also state that the employment relationship is “at-will,” either party may terminate it for any or no reason, and that nothing within the manual will be interpreted to change this relationship.
Sexual Harassment and Discrimination Policy
The most important policy in the manual is the sexual harassment and discrimination policy, but too often manuals fail to sufficiently state this policy. Recent cases hold that employers with sexual harassment and discrimination policies, on which they train employees and investigate complaints, reduce their liability from claims of alleged harassment by employees. Even if the employer has no other policy, it should implement and follow a sexual harassment and discrimination policy to reduce its liability.
Protection of Privacy
Another important provision is the protection of an employee’s privacy. If an employer does not notify employees that they should have no expectation of privacy and that office equipment and e-mail accounts are the property of the employer, then the employer is precluded from looking at employees’ e-mail accounts. This is the kind of limitation that employers do not wish to have.