Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jim (00:00):
An essential step to creating an
effective employee handbook is determining
which policies to include and whichpolicies to avoid to help employers.
This podcast will cover policies thatare considered must-haves and policies
that are potentially problematic.
Welcome to HRpreneur.
I'm Jim Duffy.
From Main Street to Your Street, theHRpreneur Podcast is centered around
(00:20):
helping small businesses like yours.
Gain the knowledge you need fromHR, payroll, and hiring to time
taxes, benefits, and insurance.
Today we have the pleasure to onceagain speak with our guest, Meryl
Gutterman, about policies to include inan employee handbook and ones to avoid.
Meryl works as Senior Counsel at ADP.
And she provides guidanceon employment laws.
(00:42):
Hello there, Meryl.
As always, thank you onceagain for joining us.
Meryl (00:44):
Hi Jim.
Thanks for having me back today.
It's great to be here.
Jim (00:48):
So Meryl, in a previous
episode, we discussed six reasons
you need an employee handbook.
Today we're continuing that conversation,focusing on policies considered
must haves and ones to avoid.
Could you please get us startedby describing why it's important
to have policies for a handbook?
Meryl (01:07):
Sure.
Absolutely.
So there are some laws that requireemployers to provide information to
employees through a written policy anda handbook is a great way to do that.
And policies are also importantfor communicating company
expectations and requirements.
Um, so having those policies in a handbookputs them all in one place and makes
(01:27):
them easily accessible to employees.
And then policies can also help employersshow how they're complying with federal,
state, and local laws by providingnotice and guidance to employees as well.
Jim (01:39):
That all makes sense.
So let's look at some policies that areconsidered must haves for a handbook.
If you wouldn't mind, let'sbegin with at will status.
Can you please explain firstwhat at will employment means?
Meryl (01:51):
Sure at will
employment means that absent certainexceptions, such as a contract or public
policy or an agreement, an employer oran employee can terminate the employment
relationship at any time for any reason.
Provided that the reason is a lawfulone and most employment is considered
at will unless you're in Montana, whereat Will employment is not recognized.
(02:15):
So an at will policy is considered
a really important policy in an employeehandbook because it can help explain
what at will status means, and it canreinforce the understanding that the
handbook is not creating a contractof employment because that also
could jeopardize the at will status.
Jim (02:33):
Meryl, thanks for clarifying that.
Uh, next, can you pleasediscuss considerations for
policies on employee conduct?
Meryl (02:40):
Sure.
So it's considered a best practice tohave policies on standards of conduct,
drug and alcohol abusepolicies, disciplinary action
policy, confidentiality.
Conflicts of interests and workplaceviolence policies are important too.
So you should be clear in all ofthese policies that violations could
(03:01):
result in disciplinary action up toand including termination, and that
your company reserves the right todecide what disciplinary action to
take in any situation while they'reconsidering the severity of the offense
and an employee's history of misconduct.
But ultimately, you wanna remember thattreating your employees fairly is key,
(03:21):
and that you should look at similarsituations and past practices to make
sure that they help guide and impactthe disciplinary action that you take.
Jim (03:32):
So Meryl, along with employee
conduct, could a policy on employee
attendance be considered a must have?
Meryl (03:37):
Yes.
An attendance policy is definitelyimportant for your handbook.
It can make clear that employees arerequired to be ready for work at their
scheduled start time each day, and itcould also provide procedures to help
the employee inform the company of anunscheduled absence or a late arrival.
But make sure that you're avoidingno fault attendance policies.
(04:01):
And these are the types of policiesthat usually subject an employee to a
specific form of discipline if they'reabsent or tardy a certain number
of times, regardless of the reason.
And these policies can be problematicbecause if one of the absences is
protected under federal, state, or locallaw, and the employer counts the absence
(04:23):
against the employee, then the employercould be in violation of that law.
So for example, if employees have aright to take leave under the family and
Medical Leave Act, the FMLA, for example,or a sick leave law, or the Americans
with Disabilities Act, then employeescan't have that leave count against
them when the employer is evaluatingtheir attendance or their performance.
Jim (04:48):
Meryl, you just mentioned sick leave.
Could we just drill downon that for a moment?
Should employers have a handbookpolicy that addresses sick leave?
Meryl (04:56):
Sure.
Yes, absolutely.
So there are many states and localjurisdictions that have enacted
laws that entitle employees to paidsick leave for covered reasons.
So it's a great idea to have asick leave policy that explains
what those covered reasons are.
But that said, employers should alsoavoid having sick leave policies that
provide too little paid time off orhave an overly restrictive rules on use
(05:20):
because that could discourage employeesfrom staying home when they're sick.
Also, employer policies shouldavoid requiring a doctor's
note for every sick day.
Um, sometimes state and local paidsick leave laws prohibit employers
from requesting documentation unlessthe employee has taken sick leave for
for more than three consecutive days.
And most leave laws allow employers to askemployees for reasonable documentation of
(05:45):
the need for leave after those three days.
Jim (05:48):
That's very useful, uh, information,
Meryl, thanks for clarifying that.
Uh, since you mentioned attendance,uh, would policies around employment
classification meal break periodsand say timekeeping also be
107,
considered essential policies?
Meryl (06:02):
Yes, those also are
important policies to have in
an employee handbook for sure.
Um, it's a best practice to have apolicy that clearly defines employee
status, such as full-time or part-time,or exempt or non-exempt since an
employee's classification can alsodictate eligibility for benefits
or for overtime pay, and then alsohaving a policy on meal and break
(06:24):
periods is important to have becausethat can inform the employee of how
often they can take breaks, whether thereare rules or restrictions related to
break periods, rest periods, lactationbreaks, and meal periods need to be
provided in accordance with certain laws.
So it's important to spell out what thoserequirements are in a policy as well.
Also a timekeeping policy.
(06:46):
That's another important policy becauseit tells employees how they should
be recording their time and why it'simportant to accurately record their time.
And with many employees workingremotely and having flexible schedules,
employers should have that policy
clear to make sure that itmeets their needs regardless
of how the employee is working.
(07:07):
Um, among other things, the policy is todirect non-exempt employees to record all
of the time that they work and requirethem to confirm their work hours at
the end of each pay period and instructthem to report any errors in their time
record immediately.
Um, and a policy should alsoexpressly prohibit off the clock work.
But if an employee does perform off theclock work, then you still have to pay
(07:30):
them for the time that they're working.
Also, a policy that covers paydaysshould let employees know the frequency
of paydays, the methods available forreceiving pay, and any special procedures
for when a payday falls on a holiday orwhen an employee is absent from work.
Jim (07:46):
Thank you Meryl.
It's very good information to know,uh, since you mentioned absences
from work, let's look at anothermust have policy, which is one
on leave and time off benefits.
Meryl (07:56):
Sure.
So leave and time off
benefit policies, address companyrules and procedures related
to holidays, vacation, or leavethat may be required by law.
So in general, these policies shouldcover who is eligible, what reasons
qualify for leave, carry over, and accrualwhether the leave is paid or unpaid.
(08:17):
The procedures for requesting leave andany record keeping or notice requirements.
So make sure that you're checkingyour state and local law just to make
sure that all of the requirements areincluded in that policy in your handbook.
Jim (08:31):
So, Meryl, um, if we can,
let's switch gears and let's
turn to anti-harassment andnon-discrimination policies.
Can you share some perspectivewith our listeners on those topics?
Meryl (08:40):
Absolutely.
So there, there are a number ofjurisdictions that require employers
to maintain a written policy onpreventing harassment in the workplace.
Um, there are some states thatrequire this for all employers,
including California, Maine,New York, Oregon, and Vermont.
And then there are states that.
Had this requirement to only certainsize employers as well, so make sure
(09:01):
you're checking your jurisdiction andalso make sure you're checking to see
that your harassment policy includesspecific information such as how an
employee may file complaints withtheir state or local agency, or report
complaints to your HR department.
And even if your jurisdiction doesn'trequire a written policy, it really is a
(09:22):
best practice to have one since there are.
Also state and local agencies,and also some case law out there
that recommends employers have awritten anti-harassment policy.
Jim (09:34):
Meryl, thank you.
Uh, now that we've coveredanti-harassment policies, let's
look at non-discrimination policies.
171,
If you don't mind.
Meryl (09:41):
Sure thing, Jim.
So there are a number of lawsthat prohibit employers from
discriminating against applicants andemployees on the basis of protected
characteristics such as age andrace, sex and religion among others.
And it's a best practice to have apolicy that lists these characteristics
that are covered under the law thatapplies to your business, and also
(10:02):
to have in that policy, who is
covered whether it's an applicant,employee, intern, or a contractor
where that may be applicable.
Also, your policy should prohibitretaliation against the employee for
exercising their rights under the law, andthe policies should also give employees
all the avenues that they need to report
a potential instance of discriminationand also make sure that you're clear
(10:26):
that you as the employer will providethe appropriate disciplinary action
that could include termination.
Um, if it's found that there isdiscrimination in your workplace.
Jim (10:37):
Thank you for clarifying that Meryl.
Uh, one more.
Regarding our must have policies.
Can you explain why a policy on reasonableaccommodation is considered a must have?
Meryl (10:46):
Sure.
So under certain laws such as theAmericans with Disabilities Act and
Title VII of the Civil Rights Act.
An employer has to provide a reasonableaccommodation to a qualified applicant
or an employee who has a disability orperhaps a sincerely held religious belief
and practice, unless doing so, wouldcause an undue hardship to that employer.
(11:08):
And there are states that havesimilar requirements that apply to
smaller employers and some laws.
That also require accommodationsin additional circumstances,
such as if an employee has apregnancy related condition.
Um, and some of these laws requireemployers to have a written policy
on reasonable accommodations.
So it's really a best practice tospell that out in a policy so that
(11:29):
an employee knows how to ask for areasonable accommodation, knows what
protections they're entitled to, andso that the employer understands what
their requirements are when dealingwith reasonable accommodations as well.
Jim (11:42):
Uh, thank you.
That's excellent, Meryl.
Uh, now we've mentioned a fewpolicies to avoid already, but
can you cover some other onesthat employers should be aware of?
Meryl (11:51):
Sure, I'd be happy to.
Jim (11:52):
So thank you for that.
Let's start with somepay policies to avoid.
Meryl (11:56):
That's a great idea, Jim.
Um, so there's several policiesthat come to mind when we're talking
about pay that you would wanna avoid.
And the big one, um, I think ismaking sure that you don't have a
policy that promotes pay secrecy.
So you don't wanna have apay confidentiality policy.
There are a number of reasons for that.
One is that under section seven of theNational Labor Relations Act, employees
(12:20):
have the right, among other thingsto work together to improve their
wages and their working conditions.
And also to discuss their wagesand their benefits and other terms
and conditions of their employment.
And that's regardless of whetherthere's a union in your business.
So the National Labor Relations Board,which enforces the NLRA, and also a number
of courts have found that having a paysecrecy or a pay confidentiality rule
(12:45):
could violate those section seven rights.
Um, and they're also
states and local jurisdictions that alsoexpressly prohibit pay secrecy policies.
So you wanna pay attentionto those as well.
And then one last policy I canthink of that's important to avoid
is withholding final pay untilcompany property is returned.
As a general rule, youcan't withhold final pay
(13:07):
until an employee returns theircompany equipment. You have to meet
all of your final pay requirements andthe deadlines, even if the employee
hasn't returned company property.
Um, typically federal law requires finalpay at the next regular payday, but
there are several states that have theirown rules, and some of those require
(13:27):
final pay at the time of termination.
So you just wanna, again, be sure you'rechecking all of your final payrolls in
the jurisdiction where you're operatingto make sure that you're complying.
Jim (13:38):
Meryl as always,
thank you.
That was very interesting and helpful.
And this brings us tothe end of this episode.
Again, I appreciate your time and,uh, visiting us here on HRpreneur.
Once again, as I normally do, I, Itake some notes while you're sharing
your thoughts and I'm just gonnarecap a couple of points right here.
The first one is, there are a numberof policies that are considered
must-haves and there are othersthat are ones you should avoid.
(14:00):
And the second one is when it comesto drafting and reviewing an employee
handbook, employers should make sure thattheir policies comply with all applicable
federal, state, and local laws, and areconsistent with current best practices.
Did I capture that correctly?
Meryl (14:17):
Yes, you did.
Thanks so much, Jim.
Great.
Jim (14:19):
Thank you.
Meryl, presented by ADP HRpreneur,focuses on the entrepreneurs and
business drivers who are shaping thegrowth of their companies and positively
impacting the lives of their employees.
With each episode, we'll bring theexperts to you, answer your questions,
and help you think beyond today so youcan discover more success tomorrow.
Thanks also to our listeners forjoining us for today's episode.
(14:41):
Be well, and we hopeyou'll join us again soon.