Employee Handbook: Avoiding the Unwritten Rules

Clear and comprehensive employee handbooks are a necessity for every organization. At a recent Lunch & Learn, Catherine Karczmarczyk with PennStuart discussed the importance of avoiding unwritten rules.

There are many reasons to have an employee handbook, including communicating policies and procedures, and ensuring compliance with laws. According to Ms. Karczmarczyk, essential policies for all handbooks include:

  • At-will statement
  • Contract Disclaimer
  • Reservation of Rights
  • Statement that Current Handbook Supersedes Previous Versions
  • Non-Retaliation Policy
  • Statement Regarding Benefits Plan Documents
  • Acknowledgement”

It is also essential to have a policy addressing harassment. The policy should cover what harassment is, when it is unlawful, and what constitutes harassing behavior. It addition to this, the handbook should also include a Non-Retaliation Policy, recognizing an employee’s right to file grievances and guaranteeing no retaliation against the reporting individual.

Strongly suggested policies for all handbooks include:

  • Purpose of the Handbook
  • EEO Statement
  • Employment Classifications
  • Work Hours
  • Attendance
  • Timekeeping
  • Pay Practices
  • Payroll Deductions
  • Holidays, Vacations, Sick Time, etc.
  • Different Types of Leave
  • Reasonable Accommodations
  • Personal Appearance
  • Drug/Alcohol Testing
  • Tobacco Use
  • Driving on Company Business
  • Company Inspection of Work Area
  • Weapons/Non-Violence

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There are three categories of rules according to the National Labor Relations Board (NLRB): Category 1 rules are generally lawful to maintain, Category 2 rules warrant individualized scrutiny, and Category 3 rules are unlawful to maintain. Ms. Karczmarczyk went through some rules and which category they fall under.

Civility Rules: Most civility rules are considered Category 1 rules. The general idea of Civility Rules prohibits name calling, socially unacceptable behavior, rudeness, or gossip. A Category 2 Civility rule would be banning disparaging comments about the employer, and that is something to beware of when writing the handbook.

No Photography and No Recording: It is acceptable to ban recording since that is now considered a Category 1 rule. If your company ban includes cell phones, which could be an employee’s main method of communication, it is important to give advanced notice and a reason for the rule. It is also a good idea to enact the ban for working time rather than working hours, this allows for employees to use their cell phones on lunch and breaks.

Disruptive Behavior Rules: Disruptive behavior rules are usually considered Category 1 rules as long as the disruptive behavior happens during company hours. The idea of this is to limit dangerous or bad behavior. However, banning employee activity outside of working hours becomes a Category 2 rule and the courts will look to see if “the employer has a legitimate interest in banning the activity.”

Confidentiality: It is acceptable to make a rule “banning discussion of confidential, proprietary, or customer information.”  However it becomes a Category 2 rule when an employer tries to require confidentiality about “employer business” or “employer information”. It is unlawful to require confidentiality about wages, working conditions, and benefits.

Rules Against Using Employer Logos or Intellectual Property: It is also acceptable to ban employees from using employer logos and intellectual property. However, banning the use of the employer name is considered a Category 2 rule.

Rules Requiring Authorization to Speak for the Company: It is considered a Category 1 rule to “prevent an employee from speaking to the media on the employer’s behalf.” It is a Category 2 rule to ban speaking to media as an individual employee. The employer would need a legitimate reason to ban this.

FMLA: FMLA is something that must have a separate policy that meets Department of Labor requirements. If the employer isn’t large enough to be required to have an FMLA policy, it is a good idea to consider a leave of absence policy.

Personal Use of Employer-Owned Internet Devices and Resources: Ms. Karczmarczyk suggests being practical when creating rules regarding personal use of employer owned cell phones, computers, and resources. It is important to be specific with usage guidelines and policies. Employers also have the right to “monitor electronic communications if an employee is using an employer’s equipment.”

Social Media Policy: The key to having a social media policy is to have a strict definition and apply it consistently. Employees can be terminated for publishing confidential information, but not for statements that would be considered Category 3, for example wage information.

Discipline: Ms. Karczmarczyk advised that in regard to discipline it is best to state that discipline will be imposed as necessary, up to and including termination. It is also best to reserve “rights to impose any level of discipline deemed necessary, including discharge for the first offense.” All discipline measure taken should be documented and kept in the employee’s file.

Non-Solicitation and Non-Distribution: Banning solicitation and distribution during working time is considered presumptively valid. Working time is the time employees should actually be working. This needs to be enforced in a non-discriminatory manner.

Other topics that might be covered in an Employee Handbook include performance reviews and promotions, and job descriptions. Handbooks should be updated yearly and always dated.

Important notes:
The information above serves as a recap of the presentation provided by Catherine Karczmarczyk with PennStuart, but was not written by Ms. Karczmarczyk. All information and quotes were sourced from the presentation provided and were written by SVAM.

SVAM Members can view the full video of Ms. Karczmarczyk’s presentation here.

None of the advice or comments attributed to Catherine Karczmarczyk or PennStuart should be relied upon as legal advice, nor was any advice or comments intended to be legal advice.