Employee Handbooks (CONT’D FROM PAGE 1)
an HR consulting firm. “They can create both opportunities and liabilities.” Adding fuel to the fire is a fundamental shift under- way in the purpose and practice of the typical handbook. “Employee handbooks are no longer just listings of work rules,” said Adler. “A growing number of companies are us- ing them to describe the strategic and business objectives of the organization.” Ambitious statements about a company’s progressive culture, though, risk over-promising in terms of the organi- zation’s worker relationships. “Employee handbooks that are misaligned, improperly drafted or ineffectively imple- mented can have negative consequences,” said Adler. Protecting The Employer While employers of all sizes need to be careful of the statements they include in their handbooks, the converse is also true: Well-written handbooks can help protect em- ployers from legal liability. And one characteristic of a good handbook is the inclusion of procedures employees should follow when they encounter workplace problems. “The handbook should describe processes that em- ployees can use to express concerns about employment practices that affect them,” said Peter Cassat, a partner at the law firm of Culhane PLLC. “Because employers must have had knowledge of an alleged incident to be liable for violation of the law, they can often defend themselves by noting that employees filing suit did not avail themselves of reporting avenues as outlined in the manual.” Attorneys also advise including the following: • Overtime policies Failing to pay properly for overtime can carry serious fi- nancial consequences. However, the Fair Labor Standards Act has created a so-called “safe harbor” from liability for unpaid overtime when employers have instituted ade- quate procedures that grant employees opportunities to request wage corrections. “When an overtime issue arises, administrative agen- cies such as the Wage and Hour Division of the US De- partment of Labor will ask to see a copy of the employee handbook,” said Jean E. Novak, chair of the Employment Group at Strassburger McKenna Gutnick and Gefsky. “They look for adequate notice to employees about re- porting procedures.” Employment attorneys suggest businesses include a statement such as this in their handbooks: If you think we've made a mistake, bring it to our attention. We want to know and will correct any error. The FLSA safe harbor protection will only work, though, if the employer has taken pains to follow the law. “If the company knew employees were working off the clock and did nothing about it, or they weren't enforcing their stated policies, it won't make a difference,” cautioned Hunter K. Yoches, an associate in employment law at Bass, Berry & Sims.
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