Erick Becker
Most employers have realized the important role an employee handbook plays as an evidentiary tool in defending any type of employment claim. Even small businesses with few employees need written policies to protect against liability. Unfortunately, many employers put together a handbook from bits and pieces collected from the internet, templates, and old manuals handed down from other companies. As a result, the majority of the handbooks we review are missing critical policies or contain incomplete policies, which can create problems down the road if left uncorrected. Here are the top five missing or incomplete handbook policies, based on frequency, in our experience:
5. Meal and rest period policies
Many handbooks contain a cursory statement that employees are eligible for a thirty minute lunch and two rest breaks a day. When an employee files a wage claim with the Labor Commissioner, these incomplete policies are insufficient to establish that the employer maintained practices in compliance with the wage orders. This is particularly important in light of the Brinker ruling that an employer is not liable for missed meal periods if the employee knew his rights and was not encouraged or required to work any portion. Further, a recent California Court of Appeals decision found that the lack of a policy expressly authorizing employees to take rest breaks allowed a class action lawsuit to proceed. A complete policy should expressly and clearly set forth meal and rest period rights and the employer’s commitment to upholding those rights.
4. Medical or disability leave policies
Employers subject to FMLA/CFRA often neglect to have a separate policy detailing leave rights for employees who are not yet FMLA eligible or have used up their allotment. Likewise, smaller employers leave this policy out of the handbook and simply rely on a personal leave policy. Since almost all medical conditions or injuries constitute a disability in California, it is critical to have a policy setting forth the right to leave as an accommodation, and the process for seeking and being approved for such leave. If the employee fails to follow the written policy, it can provide a defense in a disability discrimination lawsuit.
3. Social Media policies
While more employers are recognizing that the myriad issues arising for employee use of social media requires a written policy, many handbooks contain statements with simple declaratory prohibitions, such as “don’t use the company logo.” Policies that don’t distinguish between on-duty and off-duty use and are overbroad in limiting employee rights are increasingly being found unlawful by the National Labor Relations Board. Social media policies must be very detailed and specific in their prohibitions to survive legal scrutiny.
2. Rules of Conduct
Most handbooks contain a short list of major (and fairly self-evident) rules – no fighting, weapons, insubordination, etc. Often, however, employees commit less heinous infractions that still merit disciplinary action – violations of dress code, falsifying documents, failure to call in absences, breach of confidentiality, and so on. Although an all-inclusive list of rules is impractical, a well-crafted, more comprehensive list prevents employees from claiming they “didn’t know” and can be very useful in establishing there was a legitimate, good faith reason for the discipline or termination.
1. Drug and alcohol testing policies
We often receive calls from employers concerned about possible use of drugs or alcohol in the workplace and wanting to send an employee for testing, but when asked what their policy states, the answer is they have no policy. Employers can test based on reasonable suspicion an employee is under the influence, which includes testing after a workplace accident or injury. Maintaining a uniform, detailed policy on reasonable suspicion testing will help defend against privacy or discrimination claims, and will also provide guidance to the supervisors and managers who are charged with determining when testing is appropriate.
