The Book On Handbooks
They Need to Be Current, and Employers Need to Abide by Them
“Less is more.”
Those three words comprise one of the many forms of advice that Elaine Reall has for business owners and managers when it comes to what’s written in employee handbooks.
She says it should apply to most all content, but especially references to laws and regulations regarding the workplace, including the state’s Paid Family and Medical Leave Act.
“Employers go on, page after page, explaining a very intricate statute,” said Reall, chief legal officer for the Springfield-based Royal Law Firm. “They don’t need to do that; they need to say, ‘you’re eligible under Massachusetts law for the Paid Family and Medical Leave Act, and here’s the hyperlink to the government’s site, which will take you through the entire process.’”
Reall has lots of other advice on handbooks, regarding everything from how they should be updated regularly — especially when there are important changes in laws or seismic shifts in the workplace — to how managers shouldn’t borrow a template off the internet, to … well, whether a small business even needs a handbook.
Indeed, she noted, handbooks are increasingly being viewed as contracts.
“A lot of employers don’t realize that the first or second document that a plaintiff’s attorney in the employment area looks for is the guidebook, handbook, or whatever is being put out there by the employer,” she said. “And they’re looking to see if there are implied contractual commitments that they can use, because Massachusetts does recognize that you can create an implied contract not just with the whole handbook, but with portions of the handbook.”
For this reason, if a business is going to have a handbook, and if it is going to have content on certain subjects, its managers need to be sure they get it right, she said.
John Gannon, an employment-law specialist and partner at Springfield-based Skoler Abbott, agreed. He noted that handbook policies come in two categories — those for which employers are legally obligated to have a policy, such as the Bay State’s earned sick time law, and those that are recommended.
“You don’t have to have them, but you should have them,” he said, adding that policies in this category include everything from remote work (more on that later) to dress codes.
Overall, a handbook should help get everyone on the same page — figuratively, but also literally — and also protect the employer, said Gannon, adding that handbooks are not contracts, but they are, or should be, written in such a way to help protect the employer if there are complaints or legal actions taken by employees.
“One of the reasons you have a handbook — not the principal reason, but one of the reasons — is if there is some kind of litigation and someone is challenging the reasons they are separated from employment,” he explained. “They might say they were fired because of their age, for example; the employer says, ‘no, you violated this policy.’ It’s helpful to have a policy in writing, so you can say, ‘this is the policy, and this is how you violated it.’
“If you have it in writing, that’s good. If you don’t have it in writing, that’s bad,” he went on. “And what’s worse is to have the wrong policy in place, something that’s old and outdated.”
But — and this is a big but — if an employer is going to put something in the handbook, then it must abide by it, or the company could open itself up to trouble, said Gannon, who has seen this happen on many occasions.
“The best advice I can give is to put it in writing — and follow it,” he said, adding that this is one of the key reasons why training of managers is so important. With training, they’re better able to know the policies and abide by them.
Reall agreed. “There’s a lot of litigation where handbooks show up and are used against employers,” she explained. “You don’t want to require your employees, in the context of your handbook, to do X or Y without recognizing that the courts will recognize that and say, ‘reciprocity — you’re binding their hands here. What about you, employer? If you’re going to make these requirements, then it’s up to you to uphold them.’”
For this issue and its focus on business management, we take an in-depth look at handbooks and how to make sure they do what they are created to do.
The Write Stuff
“Telecommuting is not designed to be a replacement for appropriate childcare. Although an individual employee’s schedule may be modified to accommodate occasional childcare needs, the focus of the arrangement must remain on job performance and meeting business demands. Prospective telecommuters are encouraged to discuss expectations of telecommuting with family members before entering a trial period as the employee should not undertake to provide primary care for a young child during at-home working hours. If a young child will be home during the employee’s at-home working hours, some other individual should be present to provide primary care.”
That’s a passage from a handbook that Gannon, who recommends handbooks for companies with six or more employees, helped craft for a client. It’s an example of being both current — remote work, while not necessarily new, has certainly become much more prevalent since the pandemic — and thorough, leaving little ambiguity when it comes to the employers’ wishes, policies, and expectations.
Indeed, the section on telecommuting in this particular handbook covers everything from eligibility to equipment; from safety to time worked, specifically with regard to overtime and those not exempt from the requirements set in the Fair Labor Standards Act. “Hours worked over those scheduled require the advance approval of the telecommuter’s supervisor,” it reads. “Failure to comply with this requirement may result in the immediate termination of the telecommuting agreement and other disciplinary action.”
The rise of remote work and the many issues associated with it provides a reminder that handbooks need to be updated regularly, said Gannon, suggesting every two years. And if that yardstick is used, the updates should be relatively minor in nature. If they aren’t, well, the opposite is true.
“If I reviewed someone’s handbook in 2002 and they bring it to me in 2024, there may be one or two new policies to add and a few things we need to tweak,” he said. “But it’s quick if you stay on top of it. I had someone who just sent me their handbook, which hadn’t been looked at since 2017, which means it’s missing quite a few things and may have policies that don’t even apply anymore.”
He said there are many topics, as well as changes in the social and workplace landscape, that should be addressed in handbooks — everything from the Bay State’s Crown Act, which expands the definition of discrimination based on race to prohibit discrimination based on natural and protective hairstyles, to social media and the need to use gender-neutral pronouns with all policies.
Overall, there are many topics an effective handbook should cover, Gannon said, listing anti-harassment policies, the state’s sick-time and family-leave laws, meal breaks, what he calls a ‘code of conduct’ outlining proper behavior, and a workplace-violence policy, preferably one stating that the employer has zero tolerance for such violence “because that’s a scary thing these days.”
Reall agreed, but noted, again, that companies, and especially smaller ones, should think at least twice about whether they need a handbook and, if they determine they do, what goes in it.
“I tend to see more problems created by handbooks with smaller companies than positive outcomes,” she told BusinessWest. “It’s a tool, but it’s a tool that, if you don’t use it right, can burn you.”
She added that many of these smaller companies look for a template — a free handbook that shows up on Google — or copy another company’s handbook.
“Years ago, maybe not so much now, everyone used to steal MassMutual’s,” she recalled. “It was about 300 pages long and incredibly detailed; it read like an insurance contract, and it was absolutely what you didn’t want if you had 25 employees.”
Bottom Line
What employers do want is something that suits their sector and their specific business, Reall went on, adding that, if a company if going to have a handbook, it should enlist the help of an expert. And that employer should make it clear that the handbook is just a guide and that the employer reserves the right, unilaterally, to change anything in the handbook at any time.
“It’s got to look like an employer document and not an agreement between the employer and the employee,” she went on, adding that a handbook can, indeed, be a valuable tool — but only if it’s done right.
“You need to make sure that whoever crafts it knows what they’re doing. If you’re a small employer and you have no HR department, and you’re going to look at your handbook about once every 10 years, that’s very dangerous, and you would be best off not putting things in writing that will come back to haunt you.”
In short, when it comes to handbooks, employers should remember that less can certainly be more.
Elaine Reall was interviewed by George O'Brien from BusinessWest. Click here to visit their website.
