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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Why Written HR Policies Limit Liability (Part 1 of 2)
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: Why Written HR Policies Limit Liability (Part 1 of
2)
Recent developments in harassment and other discrimination case law
show just how risky it can be if you do not have written policies. Find
out
how to make sure your policies protect, not harm, your organization. |
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^^^^^^^^^^^^^^^^^^^^^^^^^ From Your E-Tips Editors
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THIS WEEK'S E-TIP: Why Written HR Policies Limit Liability (Part
1 of 2)
When was the last time you reviewed your
organization's policies? If
you're like many employers, writing or updating policies is at the
bottom
of a lengthy "to-do" list. And, you may even question the value of
having
written policies because of the apparently conflicting advice
concerning
their usefulness.
On one hand, many HR experts advocate having written policies as a
way of communicating your organization's values and practices to
employees. Alternatively, a growing number of attorneys are warning
their clients that poorly drafted policies may land them in court.
So,
whom should you believe?
The short answer is both groups. Upon closer consideration, these
positions are not contradictory. Well-written policies can both
serve as
an effective communication device and help you stay out of court, or
at
least give you a better chance of prevailing. In contrast, poorly
executed
policies can create unintended contracts and be used of evidence of
noncompliance in court.
This week's and next week's E-Tips will help define the underlying
issues
and make clear why written policies that are carefully developed,
updated, and applied are an effective tool that you need. This week,
you
will find out why written policies are important, who needs to have
them,
and how to make sure they do not create a contract that you must
follow.
Next week, you will learn the difference between supervisory manuals
and employee handbooks and find out which policies every employer
should have.
1. Why are written policies important?
Sound employment policies provide the framework within which an
organization governs its employee relations. A policies and
procedures
manual guides both managers and employees as to what is expected
and can prevent misunderstandings about employer policy. In
addition,
supervisors and managers are more likely to consistently apply
policies
that are clearly communicated in writing.
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It is true that written policies, like any record, can be used
against an
organization in a lawsuit. Poorly drafted policies often become the
main
evidence presented when employees allege that the policies were in
fact
a contract that the employer violated. However, policies that are
carefully written so as not to be contracts actually should protect
against
these claims and not be a problem. (See number 4, below.) In
addition,
carefully written policies can be used to illustrate your commitment
to a
positive work environment and nondiscriminatory employment
practices.
(See number 3, below.)
2. Are we required to have written policies?
Although written policies in general are not legally required,
certain
policies may be mandatory or at least be considered an important
component in helping employers establish good faith compliance with
federal and state law.
For example, the Supreme Court has indicated that employers may
protect themselves against liability for sexual harassment by having
clearly articulated policies against sexual harassment that include
effective complaint procedures. In addition, the Family and Medical
Leave Act requires covered employers to provide written information
regarding employee rights and employer obligations under the Act.
Similarly, certain federal contractors must have written equal
employment opportunity policies. And finally, many state laws
require
written harassment policies and policies informing employees about
compensation issues. |
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From Your
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3. Does every organization need written policies?
As a general rule, every employer, except maybe those with fewer
than
15 employees, should have written policies. Employers with 15 or
more
employees are covered by federal discrimination laws (such as Title
VII
and the Americans with Disabilities Act) and most state
discrimination
laws. Written policies are a good starting point to show your
commitment
to nondiscriminatory employment practices. For example, a
performance
review policy can show the job-related criteria used to evaluate
employees and any safeguards used to ensure the process is conducted
in a fair and objective manner.
Smaller employers should at least consider creating a handbook since
it
is likely they already have some policies in writing. For example,
employment offer letters may explain vacation and sick leave accrual
while other items, like a posted memo, may outline pay procedures.
Thus, to ensure distribution to all employees, even the small
employer is
well advised to compile these memos into a handbook that is given to
every employee.
4. Will we create a contract if we have written policies?
The simple act of putting your policies in writing should not create
a
binding contract if the policies are written as guidelines that
explain
generally what your requirements are and how employees normally will
be treated. However, you can create a contract by using language
that
conveys rigid rules that must be followed exactly as written in all
circumstances.
Therefore, you should build flexibility into your wording and steer
clear of
any promises that could be interpreted as a contract. Your policies
should not, for example:
-- State that the organization will "only" or "always" do something
or
"must" act in a particular way;
-- Describe employees as "permanent";
-- State that employees will be terminated only for "cause";
-- Make promises of job security; or
-- Use all-inclusive lists, such as in disciplinary procedures or
work rules.
Instead, you should use terms such as "generally," "typically,"
"usually,"
and "may" so that managers have flexibility in interpreting and
applying
the policies. In addition, you should specifically retain
management's
right to update, change unilaterally, and implement all policies as
the
organization sees fit. Finally, you should include a strong
"at-will"
statement that clearly specifies that all employees (who do not have
contracts or collective bargaining agreements specifying otherwise)
may
quit at any time and for any reason or may be terminated at any time
and
for any lawful reason.
Next week: The difference between supervisory policy manuals and
employee handbooks and which policies every employer should have. |
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Subscribers to the Personnel
Policy Manual and HR Policy
Answers on
CD can find more information about
at-will employment in Employment-
At-Will, Chapter 106.
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review, go to:
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Information provided in HR Matters E-Tips is researched and reviewed
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