By Ann Marie Zaletel and Andrew Crane

As we recently blogged earlier this week HERE, here is the continuation of our “Top Ten” handbook mistakes and tips on how to avoid them:

#5.       Having A Too Narrow Anti-Harassment Policy.  Employers sometimes limit their anti-harassment policy to sexual harassment.  Make sure that your policy prohibits all unwelcome conduct based on any protected status, such as race, national origin, religion, and disability.  An even more common mistake is to prohibit only unlawful harassment.  An employer will want to be informed of any unwelcome conduct based on a protected status (even if that conduct is not sufficiently severe or pervasive to constitute unlawful harassment), so that it can promptly stop the conduct before it rises to the level of unlawful harassment. 

Solution:  Your anti-harassment policy should prohibit all unwelcome conduct based on a protected status.  Such a policy also should undermine any argument that the employer’s conclusion that the employee violated its policy amounts to an admission of unlawful conduct.

#4.       Having A “Use It Or Lose It” Vacation/PTO Policy (In Some Jurisdictions!).  Multi-state employers need to be aware that laws governing vacation and paid time off (“PTO”) vary from state to state.  And several states prohibit employers from having a “use it or lose it” vacation or PTO policy.  Failing to account for these state law differences can subject an employer to liability. 

Solution:  Make sure your policies are reviewed to comply with laws in the States in which you do business. 

#3.       Implementing A Regimented Discipline Policy.  Employers should be careful when outlining steps of discipline for employee misconduct in the handbook.  You don’t want to commit to a specific set of disciplinary steps, removing any flexibility you might want to retain. 

Solution:  Consider including examples of the types of discipline that the company can use (e.g. verbal warning, written warning, suspension, and termination) and reserving the discretion to determine which type of discipline to use in each particular case.

#2.       Failing To Include A “No Expectation Of Privacy” Clause For Company-Issued Devices and Technology Systems.  In this day and age, many employers provide their employees with various electronic devices, such as laptops and cell phones, and technology systems, such as e-mail and voicemail.  That equipment (and what is done or said on it) remains the company’s (and maybe the company’s problem).

Solution: To prevent invasion of privacy claims, employers should make sure to specify in their handbooks that these devices and technology systems remain company property, and that the company retains the right to access and inspect the devices and systems and all information stored on them.  It also is important to clearly state that employees have no expectation of privacy when using any company-issued device or technology system.

And The Number 1 Employee  Handbook Mistake Is……. 

#1.       Purchasing An “Off-the-Shelf” Handbook.  While purchasing an “off-the-shelf” handbook might seem like a great time-saving and cost effective idea, it is almost certain to cause you problems down the road.  An “off-the-shelf” handbook also likely will not contain all the policies specific to your company and may include some policies your company hasn’t adopted (and doesn’t want to adopt).  Finally, many “off-the-shelf” handbooks have not been reviewed by counsel and, thus, may not be legally compliant.  

Solution:  A well-crafted handbook needs to be tailored to the particular employer’s specific policies and practices – and then reviewed by your employment counsel. 

Avoiding these ten mistakes can go a long way to ensuring you have a robust, compliant, and useful employee handbook.  An ounce of prevention really is worth a pound of cure.  Good night, everybody!