2. Seven Principles to Follow
When Creating an Employment Handbook
I. Make Sure Your Handbook is NOT an Employment
Contract
II. Plainly State Employer Rules, Regulations and
Procedures
III. Describe Your Policies Designed to Assist Employees
IV. Communicate Your Commitment to Equal Opportunity
V. Set Guidelines for the Termination of Employment
VI. Develop Cutting Edge Policies
VII. Incorporate State and Local Legal Requirements into
Your Handbook
2
3. I.
Make Sure
Your Handbook
is NOT an
Employment
Contract
3
4. Make Sure Your Handbook Is
Not an Employment Contract
• Handbooks Can Be Interpreted as Creating
Express or Implied Contracts
> State law controls
> Old handbooks may create rights that cannot be freely
changed
4
5. Handbooks May Create Implied
Contracts of Employment Where:
• Handbook sets forth progressive discipline plan
or corrective action procedures
• Handbook distinguishes between “probationary”
and “permanent” employees and provides for
discharge of “permanent” employees only after
specific preconditions are met
> e.g., written notice and a 30-day opportunity for
improvement required before termination because of
unsatisfactory work performance
5
6. Handbooks May Create Implied
Contracts of Employment
• See:
> Falls v. Lawnwood Medical Center, 427 So. 2d 361
(Fla. 3d DCA 1983): The court reversed the grant of
summary judgment in favor of the employer hospital
and remanded the case back to the trial court to
consider whether certain policy manuals were part of
the employee’s employment contract. Thus, Falls
leaves open the possibility that, under certain
circumstances, a policy manual might be viewed as
constituting an enforceable contract in Florida.
6
7. Handbooks May Create Implied
Contracts of Employment
• See also:
> Walton v. Health Care Dist., 862 So. 2d 852, 855
(Fla. 4th DCA 2003) (stating that “while Florida’s courts
have expressed a decided reluctance to find that
provisions in an employee handbook or policies and
procedures manual rise to the level of enforceable
contract rights, the courts have acknowledged it is
possible for such handbooks or manuals to create
enforceable rights if there is language in the employee
manual expressly providing that the manual constitutes
a separate employment agreement or the parties have
reached a mutual agreement to this effect.”) (citations
omitted).
7
8. Handbooks May Create Implied
Contracts of Employment
• But see:
> Muller v. Stromberg Carlson Corp., 427 So. 2d 266,
268 (Fla. 2d DCA 1983): The court ruled in favor of the
employer in a case brought by a discharged employee,
stating: “[The Employee] feels that we should find an
enforceable inference of . . . contract terms from the
company policy. We cannot agree. We see no
justification to depart from long established principles
that an employment contract requires definiteness and
certainty in its terms. . . . Mere expectations are
insufficient to create a binding term of employment.”
8
9. Handbooks May Create Implied
Contracts of Employment
• But see also:
> Quaker Oats Co. v. Jewell, 818 So. 2d 574 (Fla. 5th
DCA 2002): The appellate court overturned the
decision of a lower court that held Quaker Oats
responsible for creating a contractual obligation as a
result of its employment handbook. Nine employees
sued Quaker Oats alleging breach of contract because
Quaker Oats failed to pay overtime in accordance with
the policies set forth in its handbook. The court held
that based upon well established Florida law, policy
statements in an employee handbook do not constitute
the terms of a contract of employment.
9
10. Disclaimers Assist in Preventing the
Creation of Implied Contracts
• Prominently display the disclaimer in the
handbook
• Advise employees that the policies and
procedures are not intended to create a contract
• Obtain a signed receipt upon distribution of the
handbook
• Reserve the right to modify or discontinue the
policies and benefits set forth in the handbook at
any time, without notice
10
11. Disclaimers Assist in Preventing the
Creation of Implied Contracts
• Examples of the role of a disclaimer in a
handbook:
> Aponte v. Alinabal, Inc., 2008 Conn. Super. LEXIS
1505 (Conn. Super. Ct. May 29, 2008): In determining
the validity of disclaimers, Connecticut courts have looked at
the specificity of the disclaimer language, its location in the
handbook, whether the disclaimer was signed by the
employee, and the size of the print. Where, the disclaimer is
in the same size print as all other text, underlines the phrase
the Handbook "does not constitute an employment contract,
neither expressed nor implied," is signed by the plaintiff, and
could not be clearer, the progressive disciplinary policy
discussed therein did not result in an implied contract.
11
12. Disclaimers Assist in Preventing the
Creation of Implied Contracts
• Examples of the role of a disclaimer in a
handbook:
> Turner v. Fed. Express Corp., 539 F. Supp. 2d 404
(D.D.C. 2008): Handbook does not create an implied
contract where the disclaimer expressly states that it is not a
contract of employment and should not be read or implied to
provide one, and where that language is repeated on the
acknowledgement of receipt signed by the employee.
> But see Burns v. Universal Health Servs., Inc., 361
S.C. 221 (S.C. Ct. App. 2004): W here promissory
language and disclaimers make the handbook ambiguous, a
jury should interpret whether the handbook creates or alters
an existing contractual relationship.
12
13. Sample Disclaimer
There are several things that are important to keep in mind about
this handbook. First, it contains only general information and
guidelines. It is not intended to be comprehensive or to address all
the possible applications of, or exceptions to, the general policies
and procedures described. For that reason, if you have any
questions concerning eligibility for a particular benefit or the
applicability of a policy or practice to you, you should address your
specific questions to the Human Resources Department.
Neither this handbook nor any other Company document
confers any contractual right, either express or implied, to
remain in the Company's employ. Nor does it guarantee any
fixed terms and conditions of your employment. Your
employment is not for any specific time and may be terminated
at will, with or without cause and without prior notice, by the
Company, or you may resign for any reason at any time.
13
14. Sample Disclaimer
No supervisor or other representative of the Company
(except the President, in writing) has the authority to enter
into any agreement for employment for any specified period
of time, or to make any agreement contrary to the above.
Second, the procedures, practices, policies and benefits
described here may be modified or discontinued from time to
time. We will try to inform you of any changes as they occur.
Finally, some of the subjects described here are covered in
detail in official policy documents. You should refer to those
documents for specific information since this handbook only
briefly summarizes those benefits. Please note that the
terms of the written insurance policies are controlling.
14
15. Sample Receipt for an Employee
Handbook
I acknowledge that I have received a copy of XYZ Company's Employee
Handbook. I agree to read it thoroughly, including the statements in the
foreword describing the purpose and effect of the Handbook. I agree that if
there is any policy or provision in the Handbook that I do not understand, I
will seek clarification from the Human Resources Department. I understand
that XYZ Company is an “at will” employer and as such, employment with
XYZ is not for a fixed term or definite period and may be terminated at the
will of either party, with or without cause, and without prior notice. No
supervisor or other representative of the company (except the President, in
writing) has the authority to enter into any agreement for employment for any
specified period of time, or to make any agreement contrary to the above. In
addition, I understand that this Handbook states XYZ's policies and practices
in effect on the date of publication. I understand that nothing contained in
the Handbook may be construed as creating a promise of future benefits or
a binding contract with XYZ for benefits or for any other purpose. I also
understand that these policies and procedures are continually evaluated and
may be amended, modified or terminated at any time.
15
16. Disclaimers Don’t Solve Every Problem
Even with a disclaimer,
it is important for an employer to
follow its handbook policies.
16
18. Plainly State Employer Rules,
Regulations and Procedures
• Access to Personnel Records
• Anti-Nepotism or No-Spouse Rule
• Searches on Employer Property
• In-House Investigations
• No Solicitation, Bulletin Boards and E-Mail Rules
• Travel Policies
• Attendance, Punctuality and Dependability
• Performance Evaluations
• Payment of Wages
• Employer Property
18
19. Plainly State Employer Rules,
Regulations and Procedures
• Deductions from pay for unpaid disciplinary
suspension of one or more full days for
infractions of workplace conduct rules applicable
to all employees – exempt and non-exempt
(pursuant to FLSA DOL regulations)
• Policy that prohibits improper pay deductions
and creates avenue for employee complaints
concerning deductions
19
20. Plainly State Employer Rules,
Regulations and Procedures
• Confidentiality and Communications Policies
> Recent NLRB and court decisions have found that
some confidentiality and employee communications
policies violate
the NLRA
> NLRA Sec. 7 protects employee right to engage in
“concerted activities”
> Applies to both unionized and non-unionized
employers
20
22. Describe Your Policies
Designed to Assist Employees
• Federal Family and Medical • Military Leaves of Absence
Leave Act • Jury Duty Leave
• State Family and Medical • Bereavement Leave
Leaves of Absence
• Employee Assistance Programs
• Pregnancy, Disability and
Child Care Leaves of • Other Time Off:
Absence > Vacations
• Short Term Disability Leaves > Holidays
of Absence and Salary
Continuance Policies > Religious Observance
> Personal Days
> Flex Time
> Blood, Bone Marrow, and
Organ Donation Leave
> Domestic Abuse Leave
22
23. Recent Developments
• “Reasonable Break Time For Nursing Mothers”
> Section 4207 of the Patient Protection and Affordable
Care Act (P.L. 111-148) signed into law by President
Obama on March 23, 2010 requires that:
• Break time be provided for one year after a child's
birth each time an employee has need to express
milk.
• Provision of a private, shielded place other than a
restroom in which the nursing mother may express
breast milk.
23
24. Recent Developments
> Section 4207 does not specify what constitutes
“reasonable” break time, nor does it indicate any limits
on the number of breaks a nursing worker may take.
> The measure does not preempt state laws with more
generous provisions for nursing mothers.
• E.g., Ca. Civ. Code § 43.3 (2007), Cal. Lab. Code
§ 1030 (2007)
– Employer must allow the mother to breastfeed her
child in any location mother and child are otherwise
permitted to be (does not apply to expressing milk).
– Employer must provide storage (e.g., a refrigerator)
for expressed milk.
– The penalty for violating this statute is $100.00 per
violation.
24
25. Recent Developments
• The 2010 National Defense Authorization Act
> Service-Member Family Leave
• Provides up to 26 weeks/year of protected unpaid leave
within 5 years of injury to any eligible employee who is
the spouse, child, parent, or next-of-kin of a covered
service-member or veteran to care for his or her relative
(the service-member) injured during active duty
> “Qualifying Exigency” Leave
• Permits an otherwise eligible employee to take up to
12 weeks/year of leave as a result of any “qualifying
exigency” (e.g., employee’s spouse, child, or parent is on
or called to active duty in the regular Armed Forces in
support of a “contingency operation”)
25
26. Recent Developments
• Employees ineligible for FMLA leave may have
cause of action based on handbook statements
> Peters v. Gilead Sci., Inc., 533 F.3d 594
(7th Cir. 2008):
• An employee handbook promised 12 weeks of
leave and recited the 12-month, 1,250-hour
prerequisites for FMLA eligibility, but failed to
mention the 50/75 exception. In addition, the
employer informed the employee that he was
eligible for leave. Prior to reinstatement, the
employee was terminated based on his status
as a “key employee” under the FMLA.
26
27. Recent Developments
Continued…
> Peters v. Gilead Sci., Inc., 533 F.3d 594
(7th Cir. 2008): The employee, though statutorily
ineligible for FMLA leave under the 50/75 rule, could
assert a valid promissory estoppel cause of action
under Indiana state law. The court held that the leave
provisions in the employee handbook may be
enforceable as a contract under Indiana law, and, at
the least, are promises giving rise to recovery under
promissory estoppel.
> Jadwin, D.O. v. County of Kern, 610 F. Supp. 2d
1129 (E.D. Cal. 2009): The court held that when an
employer grants FMLA leave, estoppel can bar an
employer from later challenging the timeliness of the
notice, noting that estoppel can also bar an employer
from later challenging eligibility for that leave.)
27
29. Communicate Your Commitment
to Equal Opportunity
• Equal Employment Opportunity Policies
• Anti-Discrimination, Harassment and Retaliation
Policies and Complaint Procedures
> Faragher and Ellerth
> Gorzynski
> Suders
> Kolstad
> Burlington Northern
29
30. Equal Employment Opportunity
Policy Statement
• Equal Employment Opportunity has been, and will
continue to be, a fundamental principle at XYZ,
where employment is based upon personal
capabilities and qualifications without discrimination
because of race, color, religion, sex, pregnancy, age,
national origin, disability, genetic information, or
any other protected characteristic as established by
law.
• This policy of Equal Employment Opportunity applies
to all policies and procedures relating to recruitment
and hiring, compensation, benefits, termination and
all other terms and conditions of
employment.
30
31. Equal Employment Opportunity
Policy Statement
• Employees’ questions or concerns should be
referred to the Human Resources Department,
which has overall responsibility for this policy
and maintains reporting and monitoring
procedures.
• Appropriate disciplinary action may be taken
against any employee willfully violating this
policy.
31
32. Elements of an Anti-Harassment Policy
• Include Sex and All Other Protected
Characteristics (check local and state laws)
• Specifically State EEOC’s Definitions
• Define Other Forms of Harassment
• Give Examples of
Harassing Behaviors
• Define Supervisory
Responsibility
32
33. Elements of an Anti-Harassment Policy
• Outline Penalties for Engaging in Harassment
• Set Forth Clear, Internal Complaint Procedure,
with Multiple Intake Points
> [Not Just Supervisor!]
• State Employer’s Investigation Obligations
• Limited Confidentiality Assurance
• Include Anti-Retaliation Provision
33
35. Set Guidelines for the
Termination of Employment
• Required Notifications
• Severance Pay Policies
• Post Employment References
• Grievance or Complaint Procedures
• Arbitration and/or Jury Trial Waiver Agreements
35
36. Arbitration Agreements
• Arbitration agreements provide that any claim or
controversy arising out of the employment
relationship will be submitted to an impartial
private arbitrator for final and binding resolution.
• Arbitration agreements are valid and
enforceable in the employment context.
• Advantages To Mandatory Arbitration
> Reduces litigation expenses
> Minimizes litigation risks
> Promotes confidentiality
> Improves employee relations
36
37. Jury Trial Waivers
• What they mean
• Jury Trial Waivers Are Generally Enforceable
• The Advantages of Jury Trial Waivers
> Removes risk that prejudiced and impassioned juries
will decide on a large verdict for the employee
> Avoids additional expense of arbitrator’s fees
> Judges are more inclined than arbitrators to impose
sanctions, if necessary
> Judges are more likely to grant motions to dismiss on
the pleadings and summary judgment
> Judge’s decision is subject to full appellate review
37
39. Develop Cutting Edge Policies
• Technology Policies
> Social Networking > E-mail, Voicemail,
Sites/Blogging Blackberries and PDAs,
> Company Equipment Internet, Instant
Messaging, Chat
• Use for Business Rooms, Public Internet
Purpose Only Posting, etc.
• Be Courteous > Telephone Call
> No Expectation of Monitoring
Privacy/ Employer > Tape Recording
Property
> Telecommuting
> Waiver of Privileges
> Anti-harassment Policies
are Applicable
39
40. Cell Phones
• Potential liability to the employer may attach
based on employees’ use of cell phones while
driving in the course of their employment
> An employer is vicariously liable for an employee’s
negligence if the employee’s
negligent act(s) occurred within
the scope of his or her
employment and was in
furtherance of the employer’s
interest
40
41. Cell Phone Tips for Employers to Avoid
Liability
• Make sure that employees know the features
available on their cell phone and how to use
them
• Prohibit the use of hands-free devices, memory,
one-button and voice-activated dialing
• Check that the cell phone is within easy reach of
the driver
• Advise employees to inform anyone with whom
they are speaking that they are driving while on
the phone
41
42. Cell Phone Tips for Employers to Avoid
Liability
• Advise employees to avoid using cell phones
during hazardous weather and traffic conditions
• Ensure that employees do not look up phone
numbers or take notes while they are driving
• Advise employees to make calls while they are
not moving or prior to pulling into traffic
• Advise employees to avoid emotional or
stressful discussions while driving
• NO TEXTING!!!
42
43. Special Issue: Camera Phones
• Total or partial ban
• If partial, ban camera
phones in restrooms and
locker rooms
43
44. Drug and Alcohol Testing in the
Workplace
• Benefits of drug-free workplace policies
> Decreases in absenteeism, turnover, downtime,
accidents and thefts
> Increased productivity and overall employee morale
• A drug and alcohol testing policy should be part
of the company’s drug-free workplace policy
> Include a detailed
description of the drug
testing procedures
44
45. Drug and Alcohol Testing in the
Workplace
• Generally, employers may test applicants and
employees in the following circumstances
(subject to state and local laws)
> During a yearly physical
> Prior to transfers or promotions
> Prior to being placed in positions involving security,
safety or money
> After an accident
> Where used drugs in past
> After treatment
> Based on reasonable suspicion
> On a random basis
45
46. Drug and Alcohol Testing in the
Workplace
• Under Florida’s Workers’ Compensation Law,
employers are permitted to require job
applicants to submit to drug and alcohol tests
provided that the employer first implements a
drug-free workplace program that includes
notice, education and testing in accordance with
Florida’s Drug Free Workplace Act, FLA. STAT.
§440.102.
46
47. Dress and Grooming Codes
• Employers are free to define business attire
differently for men and women
• Courts have upheld
> Prohibitions on female employees wearing pants
• But see California Government Code Section
12947.5: making it unlawful for an employer to
refuse to permit an employee to wear pants on
account of the sex of the employee (but not
prohibiting an employer from requiring an
Employee to wear a uniform).
> Prohibitions on male employees
wearing an earring
> Policies on hair length for men
47
48. Special Issue: Body Piercings and
Tattoos
• Some courts have upheld
company policies that
prohibit wearing facial
piercings or body art in the
workplace.
48
49. Cross-Dressing in the Workplace
• Some courts have held that a male employee
dismissed for wearing female attire cannot
successfully bring a claim of sex discrimination.
• However, cross-dressing
may be protected under
certain state and local
anti-discrimination laws.
49
50. Guns in the Workplace
• Requirements of the Occupational Safety and
Health Act (“OSHA”):
> Employers must provide a workplace that is “free from
recognized hazards that are causing or likely to cause
death or serious physical harm to his employees.”
50
51. State and Local Gun Laws
• Before implementing a ban on weapons,
check state and local laws.
> Many states have enacted laws that prohibit
employers from enforcing any workplace policy
that would prevent their employees from storing
guns in their cars on a company lot:
51
52. State and Local Gun Laws
• 2010 • 2007
> Indiana (HEA 1065) Signed > Kansas (HB 2528) -
by Governor Governor's veto overridden
• 2009 • 2006
> Arizona (SB 1113) Signed > Kentucky (HB 290) (in
by Governor effect)
> Idaho (HB 287) Signed by > Mississippi (HB 1141) (in
Governor effect)
> Montana (HB 228) Signed • 2005
by Governor
> Oklahoma (HB 1243): in
> Utah (SB 78) Signed by effect
Governor
> Alaska (HB 184): in effect
• 2008: > Minnesota (SB 2259): in
> Florida (HB 503) in effect effect (part of "Shall Issue"
> Georgia (HB 89) in effect CCW legislation)
> Louisiana (SB 51) in effect > Kentucky (SB 142): in effect
52
53. Weapons Policy
• If an employer decides to ban weapons in the
workplace, the policy should:
> Define terms such as “weapon,” “firearm,” and
“possess”
> Clearly state the policy’s purpose
> State that, despite state and local law provisions that
allow the carrying of concealed weapons, the employer
has elected to prohibit weapons on its property
> Clarify whether the policy applies only to employees or
to all persons entering the employer’s premises
> Explain which areas are covered
53
54. Weapons Policy – Drafting Tips
• If an employer decides to ban weapons in the
workplace, the policy should also contain:
> A description of the employer’s policy on workplace
searches
> A statement that employees
have no reasonable
expectation of privacy in their
personal work areas
> A signed, written
acknowledgment of the policy
> Disciplinary consequences for
violating the policy
54
55. VII.
Incorporate
State and
Local Legal
Requirements
into Your
Handbook
56. Incorporate State and Local
Requirements into Your Handbook
• Specified Personnel Policies
• Workplace Smoking Policies
• Voting Policies
• Jury Duty Policies
• Blood, Organ, and/or Bone Marrow
Donation Leave
• Protected Off-Duty Legal
Activity
• Breastfeeding
Accommodations
56
59. FOR AN OUTLINE OF LEGAL
REFERENCE MATERIALS
CONCERNING THE FOREGOING
PRESENTATION, THE LINK IS:
http://www.proskauer.com/files/News/c326b490-d6f7-472f-a36b-
2b1fccb8f5f9/Presentation/NewsAttachment/78d4f426-25ed-
42f9-aecd-2d9dbeab1a44/shrm-2010.pdf
59
