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Employee Manuals: Updating is the best defense, Business Lexington, September 14, 2012

Attorneys

Business Lexington, September 14, 2012

Authored by Jaron P. Blandford

An employer's best defense against ever-increasing employment claims is an employee manual, and more importantly an up-to-date manual. If your company does not have a manual or has not updated its manual in several years, your company could be at risk. Kentucky does not require that an employer have an employee manual. However, the main advantage to issuing such a document is to create expectations and boundaries that are clear and consistent for your workplace. A good employee handbook goes further than merely outlining policies and procedures that pertain to conduct and safety in the workplace, it promotes positive employee relations. As well, adopting an employee manual substantially reduces the legal risks that often arise — especially surrounding discrimination, harassment or termination. Even in an at-will state, a manual gives an employer more leverage with agencies, commissions and state boards that regulate employment concerns. A strong employee manual coupled with proper documentation of employee offenses safeguards against a "he said, she said" situation when serious issues arise.

If you have an employee manual, you're off to a good start. However, if it has been sitting on your shelf for years, or it's only distributed to new employees and dusted off occasionally when problems occur — it is definitely time to review and update for your company's protection. Here are some things to think about to assess where your manual stands. How does your business relate to its employees on a daily basis? Are those practices reflected in the written policies? Have your policies evolved over time with the changes in employment law? Consider how you interact and apply your "business customs." What you put into practice every day should be consistent with your legal responsibility as an employer and what is actually written in your employee manual.

Employment law is constantly changing. New legislation and regulations carve out exceptions and add new guidelines for employers to follow. To avoid the risks of non-compliance with labor laws, updates are necessary to keep your policy current and reflect the changes in the law. For example, harassment policies are not just about sexual harassment — a good general anti-harassment policy has to be in place. It is important that you include all protected classes, and you need to know what is currently trending in order to make changes to your policy. As well, policies need to be broad enough to give supervisors latitude and flexibility to make case-by-case decisions, while maintaining consistency, and incorporating the rights and protections necessary to keep everyone safe in your workplace, including the employer. This is easily illustrated within the context of policies that outline the terms of earned leave — a policy may cover general stipulations of employment such as how an employee accrues leave time, and if that earned time can be paid out upon retirement, termination or separation. These general terms of employment should all be reflected in your employee manual, whether you're a company of five or 500.

Another essential personnel manual element is the employee reporting and grievance process. Giving an employee an avenue to express concerns, report alleged wrongs and correct behaviors is all part of creating fairness in the workplace. This important step can alleviate blame when you have an employee versus employee problem. Outlining how every employee has a fair and unbiased process to follow for grievances and putting that process to work for the company is one of the best assurances you can have for staying out of court. Having a policy that offers options for recourse substantially improves the chances of the company not being held liable for individual employee's actions.

Rolling out policy changes appropriately is a necessary part of updating policies. A company can write and update its manual and have the most effective policies ever, but if they are not presented to the workforce in the proper way, policies are ineffective and just another stack of papers on everyone's desk. Whatever your detailed course of rollout, from individual meetings to a company-wide email, you have to go beyond announcing policy changes. Get written acknowledgments from every employee on every change. It is often common practice to issue updates and send out each policy change-by-change, like an addendum to the manual every few months. This is necessary to keep your employees aware of the changes occurring in the workplace policies. However, all those loose papers might get lost in the minutia of daily business and never actually make it into an employee's manual. So the reality is employees may not be operating with an updated version of the manual. Re-issuing the employee manual in its entirety is the best policy to ensure that employees have the most up-to-date version; once a year should be sufficient, unless significant changes occur. This can be a mitigating factor in unemployment hearings — if an employee was terminated because of a policy violation and the employee had noticed and acknowledged changes to the policies and procedures, the company generally has a better chance of justifying the termination for misconduct.

If nothing else has prompted you to take a look at your employee manual, social media should certainly give you pause. The way it weaves business and pleasure together is somewhat unnerving for an employer. The limits to its influence are unknown, but it is powerful, reaching millions. Social media is the perfect impetus urging employers to re-consider workplace interactions, both online and off. How will this new online landscape factor into the way you conduct business? The straightforward answer, you have to have a social media policy to control how your business navigates this new frontier. As well, your social media policy has to survive the National Labor Relations Act ("NLRA"), while not limiting protected activity. It is completely up to the employer to set the boundaries on social media interaction and usage in the workplace. However, there are guidelines that must be considered. Outlining expectations of use at work, what an employee can and cannot post about the company while using social media, is a good place to start. A strong and fair social media policy is complex and should be reviewed (as should all of your policies) by an attorney.

Employment law is constantly evolving, which makes it necessary for employers to stay current with legislation on both the federal and state levels. Like the ever-changing landscape of how we conduct business — trends like social media always factor into our practices, too. The best defense is to update your employee manual to reflect these changes and protect both the employee and the company.

Jaron P. Blandford is a member of McBrayer, McGinnis, Leslie & Kirkland, PLLC, and is located in the firm's Lexington office. Mr. Blandford focuses his practice on civil litigation with an emphasis in all areas of labor and employment law. He can be reached at jblandford@mmlk.com or 859-231-8780.

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