What Your Handbook Might Be Missing

An employee handbook sets the tone for the relationship between an employer and their employees. It informs employees of their legal rights and responsibilities and affirms the employer's obligations and expectations. A well-written, comprehensive—yet concise—handbook with a friendly tone can increase feelings of trust from employees, eliminate misunderstandings, and even help prevent lawsuits and penalties. Conversely, a handbook that is unnecessarily complex, vague, or describes processes that are not actually followed in practice can create headaches and even legal problems for employers.

It can be challenging to know what policies to include in a handbook, as the recommendations differ based on the location of the organization and its employees, the employee headcount, the industry, and the employer's unique workplace procedures and obligations, such as if they are unionized or maintain federal contracts. Furthermore, employment laws and regulations constantly change, necessitating frequent revisions and employee communication. It is no easy feat to stay on top of updates!

Archbright's Gold and Silver members receive a free annual HR and Legal review of their employee handbook. Our members love this perk—and many take advantage of the service. As such, Archbright's handbook review team is busy! We see hundreds of handbooks each year—and while each one is unique, they share some common pitfalls.

Common Handbook Pitfalls

1. The handbook makes unreasonable promises.
   
   This pitfall is probably one of the most common, yet it can cause the most strife for employers if they don’t fulfill a perceived obligation. Promissory language like “will,” “shall,” or “must” when referencing employer actions can restrict management’s ability to apply discretion as needed. Or, in those instances where work gets busy, a less-than-concrete timeline provides flexibility to address situations when it's reasonable. 
   
   A simple remedy is to replace the words “will,” “shall,” or “must” with “may” or “strives to.” For example, “HR will post all open positions internally” can be modified to “HR strives to post all open positions internally.” A simple insertion of a word like “generally,” “typically,” or “usually” can also soften a perceived promise. For example, “Employees will receive a performance evaluation in July” can be tweaked to “Employees typically receive a performance evaluation in July.” 
   
   Areas to pay special attention to ensure no implied promises include policies that address wage increases and discipline. Employees could argue they are owed a wage increase because the handbook “says so” or that they are owed a verbal warning before they receive a written warning because that’s what’s in the policy. In addition, a clear employment-at-will statement is crucial in reminding employees that they are not promised any certain duration of employment. Of course, when referencing employee requirements, the language should remain firm.
   
   
2. The handbook is too long.
   
   Not every workplace problem needs a policy. Often, managers encounter a unique employee situation and think that a handbook policy will cure that dilemma or prevent new ones from occurring. Or they make an existing policy so detailed that it will address every possible scenario that might arise. 
   
   This practice is not necessary, and it can be counterproductive. Not only will this level of detail make the handbook so long that it becomes unwieldy, and employees won't read it, but again, the employer is tying their hands and limiting any flexibility to address situations on a case-by-case basis.
   
   For instance, some employers choose to implement a “no profanity policy” or a “no gossip policy,” yet it would be much more effective to address individuals directly when their conduct adversely impacts the workplace. Additionally, a more general policy that addresses standards of conduct usually covers respectful communication and courteous behavior.
   
   An ideal handbook should be between 30 and 50 pages. Anything longer indicates that it contains too much detail or has internal procedures not intended for the general employee population. Internal procedures are best housed separately from the handbook, where they can be referenced by HR, management, or other employees who need to know that information. When crucial information, like how to report harassment, is buried amongst pages of dense text, an employee might miss it and decide to file a lawsuit instead.
   
   
3. Employers overlook seemingly minor issues like spelling and formatting.
   
   While a handbook riddled with typos and confusing formatting does not necessarily equal non-compliance, it can cause employees and courts to question the organization’s professionalism and the accuracy of the information.
   
   Words should be spelled correctly, and proper grammar, consistent font size, and styles should be applied throughout. The handbook should have page numbers and a table of contents to aid employees in navigating to their selected policy.
   
   
4. The handbook uses gender-specific language.
   
   Sexual orientation and gender identity are protected characteristics at the federal level and in many states. Accidental misuse of a transgender employee’s name and correct pronouns does not necessarily violate the law; however, intentionally and repeatedly using the wrong name and pronouns could create a hostile work environment. Using gender-neutral language in an employee handbook can help to achieve an inclusive workplace where all employees feel welcome, particularly non-binary employees who don’t identify as either male or female.
   Swap out gender-specific pronouns like “he/she” or “his/her” with “they” and “their” or “employees.” In addition, familial relationships should be referenced in a gender-neutral manner. For example, “son,” “daughter,” “sister,” and “brother” should be edited to read “child” and “sibling.”
   
   
5. Important policies are missing key information.
   
   Some policies have more potential than others to protect—or harm—an organization. In February 2022, the Department of Labor (DOL) announced that it would ramp up Family and Medical Leave Act (FMLA) audits on employers. In 2014, when the DOL made a similar commitment, there was a subsequent increase in FMLA investigations and resulting penalties for employers. Past trends show that employers should take the recent warning seriously and be prepared for an FMLA audit at any time. Handbook policies are one such source of scrutiny during a DOL audit. Many employers are unaware that their FMLA policy must contain ALL of the information listed in the Your Employee Rights under the Family and Medical Leave Act poster (or they may include the poster as an appendix). Additionally, there are some suggested statements to preserve employer rights, such as a prohibition on FMLA fraud and exceptions to employee job reinstatement rights. Therefore, FMLA policies can get lengthy for employers subject to the law, but each component is critical in remaining compliant.
   
   Aside from FMLA, other policies to pay special attention to include Anti-Harassment, Sick Leave, and Intro/Welcome (with appropriate disclaimers like the handbook is not a contract, employment is at-will, verbal agreements are not authorized except by the President/CEO, in writing, and the employer has the sole right to modify the handbook).
   
   
6. Policies provide legal rights when not required.
   
   Some employers’ handbooks contain policies that are not relevant to their company. Maybe a satellite location closed down, and those state's policies remain, or the employee headcount fluctuated such that the employer is no longer subject to certain laws, such as FMLA for employers with less than 50 employees. However, when a policy is in a handbook, the employer must adhere to its promises and offer the benefit to employees, even if not required. Of course, employers can offer their employees more than the law requires, but that should be a conscious decision and conveyed to employees as a benefit or perk where the employer decides how to administer it—rather than a legal obligation.

Employee Handbook Best Practices

Employers should review their handbooks at least once per year to determine if the policies remain compliant and ensure workplace practices are consistent with what is asserted. Revisions should be made when:

• Significant changes have occurred with benefits, policies, or procedures.
• New ownership acquires the employer, or new management takes control.
• New employment laws take effect that add legally protected rights/benefits or make existing policies obsolete or unlawful.

The final step in the handbook revision process is to notify employees of policy changes and obtain their acknowledgment. This can be accomplished by distributing the handbook to employees and requiring a signed acknowledgment of receipt form. Without a signed acknowledgment, employees can argue that they did not receive a copy of the handbook and, therefore, cannot be held accountable for knowledge of its contents. New employees should also be required to sign the form upon receiving a copy of the handbook.

Archbright’s Handbook Review Process

As previously mentioned, eligible Archbright members receive a free annual employee handbook review. A Senior HR Advisor and an employment attorney review all handbooks. Reviewers provide suggested revisions inline, recommend policy insertions/removal, and insert comments with helpful information about new or changing laws that may impact the employer. In addition, eligible Archbright members have access to mozzo, an online platform with features like the Handbook Builder and Resource Library, which has helpful resources like Employee Handbooks Keynote  and other sample policies suitable for an employee handbook. For more information about Archbright membership, contact info@archbright.com.