The Golden Rule of Employee Handbooks: Say What You Mean and Mean What You Say

Mon, May 9th, 2022 | by Miles Mediation and Arbitration | ADR Resources, Article | Social Share

By Steve Dunn

With over 20+ years representing employers, I have reviewed more employee handbooks than I care to remember. I have seen it all, from a hodgepodge of stapled sheets to stylish published booklets and everything in between. A good handbook can be an employer’s best friend, serving as an informational resource for employees and backing up an employer’s actions when they are challenged in court. There are few things more reassuring to an employment lawyer than learning the client handled things precisely in accordance with its clearly stated policy.

Over the years, I developed a few simple rules for drafting and reviewing handbooks to ensure they are helpful and effective. The most important one by far is to say what you mean and mean what you say. It is essential for employment policies to accurately describe how the company actually operates. And then, in turn, for the company to operate according to what its policies describe.

You might be surprised how many employers find policies on the internet and adopt them as their own because they think they “look good.” But a good handbook is not something to be admired for its beauty like a painting in a museum. It must guide and reflect the company in its actual operation.

One common disconnect occurs when the policy describes a complex and formal workflow when, in real life, employees take a more casual approach because it is easier. I had a client once whose handbook provided for a multi-step performance review process involving numerous assessments and interviews occurring annually on the anniversary of the employee’s hire date. Maybe they had done it that way in the past, but by the time I reviewed the handbook, performance reviews consisted of one conversation with a manager, usually conducted all at once in July because business was slow. Either approach is perfectly fine, but the policy needs to match up with reality.

Another common mistake is to impose unrealistic workplace rules. One handbook I reviewed included a provision stating, “Personal use of Company telephones and computers is strictly prohibited.” Really? This might have come as news to the dozens of employees in the company’s highly competitive fantasy football leagues. Or to everyone who listened to the VP of Sales plan the construction of his mountain house all summer on speakerphone. When I asked about the policy, I was told the company understood employees had to do some personal business at work but wanted to make sure it did not get out of hand. No problem! Let’s just say what we mean. We went with, “Excessive personal use of Company telephones or computers may result in disciplinary action up to and including termination of employment.”

Some companies like to use the handbook as a venue for extolling its own virtues or bragging about how generously it treats its employees. Some of this is OK, but a little goes a long way. I frequently recommend toning down statements like “we treat our employees like family” or “we will immediately address employee concerns with the utmost integrity and care.” I will long remember having to listen while opposing counsel had a field day cross-examining a well-intentioned business owner on whether her actions reflected the “utmost” integrity and care when, for our purposes, the normal amount was sufficient.

Every company is unique. There is no single “right” way to run a business and no canned set of policies that will apply in every instance. While the many considerations in drafting employee handbooks are beyond the scope of this article, the most important is to say what you mean and mean what you say.

ABOUT STEVE DUNN

Before devoting himself to dispute resolution full-time in 2019, Steve Dunn practiced employment law in Charlotte for over 20 years. His practice included FLSA, wage and hour, trade secrets, non-competes, and all forms of employment discrimination. Representing diverse clients from individual executives to Fortune 500 companies, Steve worked in industries including financial services, education, manufacturing, technology, construction, marketing, retail, and motorsports.

As a mediator, Steve is persistent and engaged, tirelessly advocating for resolution before, during, and after the mediation.