7 things that should never go in a handbook

November 11, 2008 by Sam Narisi HR Legal News
With some commentary by Randall Barker SPHR CELS (in italics)

Mostly, it comes down to the choice of wording. Phrasing policies the wrong way often causes big legal trouble when managers discipline or fire employees.

Here are seven big problems all companies need to watch out for, according to HR consultant Hunter Lott:

1. Illegal overtime policies — A statement that shouldn’t appear in any handbook: “Authorized overtime will be paid at 1.5 times the regular hourly rate.” That policy is illegal under the FLSA — all OT, whether its authorized or not, must be paid. You can have a rule against working OT without permission and discipline or even fire someone for it, but you still need to pay them.

The Department of Labor (the government entity that investigates overtime violations) believes a business knows everything that is going on at the work place. If managers and supervisors don’t know what is happening as far as hours being worked they need to find out, ignorance is not an excuse. A business cannot refuse to pay an overtime premium because the extra hours were worked but not authorized.

It is also wise to have strict rules concerning when an employee can punch in for the day and punch out at the end of the day. Make sure employees understand that they can’t punch in early and out late so they end up in an overtime situation at the end of the week.

2. Vague FMLA language — Policies on FMLA should lay out all of the law’s eligibility rules. Otherwise, employees who wouldn’t have qualified for leave may still be able to sue the company. Also, make sure you’re specific about how FMLA and paid time off intertwine. If employees are required to use FMLA and PTO concurrently, that needs to be in the handbook. If it isn’t, employees may argue in court that their 12 weeks of medical leave didn’t start until after their sick and vacation time was used up.

We strive to make sure that every one of your new employees receives a basic policy guide that explains FMLA leave and an employee’s rights in a clear and concise manner. We encourage clients to adopt the same language in their own policy guides.

3. Bans on salary discussions — The only logical reason for a company to ban talk about salary, Lott says, is that its pay structure is unfair and unlawful — which is a possibility employers certainly don’t want to raise. Also, such policies may run afoul of the National Labor Relations Act, which gives employees the right to talk freely about working conditions.

Often a business owner or manager feels that there is a compelling reason to pay “Bob” just a bit more than the rest of his co-workers who are doing the same job. There are “superstars” who might deserve a higher wage. If you decide to pay Bob a higher wage about all you can do is ask “Bob” not to brag about it, but you can’t discipline him if he reveals what he is making.

However, you can discipline someone who is charged with keeping payroll records secure if that person decides to make everyone’s pay scale public knowledge. A business would also have a reason to discipline a person who rifled a co-workers desk or work space to discover a pay stub and then made the co-workers wage public knowledge.

4. Unnecessary probationary periods — Specifying that new hires are on a 90-day probation is appropriate for union or government employees, who are protected from termination in some cases. But for any other company, it doesn’t make much sense. Most employees are at-will — which means they can be fired at any time for any legal reason. Giving everyone a probationary period might negate an employee’s at-will status once the 90 days are over.

We (A Plus Benefits) support telling a new employee that he/she is subject to a 90 day probationary period. However, if you are going to make this part of your policy guide make sure to clarify that a successful completion of the probationary period does not change the at-will basis of employment and does not create a contract for continued employment.

Don’t forget why we use probationary periods for new employees…to see if we want to keep them long term. Be brave enough to acknowledge that if there are issues at day 89, those issues will not go away at day 90 or 91. Don’t turn a probationary employee with issues into a regular employee with issues.

5. Rules that are too personal — Lott warns against handbook statements like, “Employees are prohibited from dating co-workers.” It makes the company sound like a babysitter and creates a serious enforcement headache. Employers will get a lot more protection from a job-related policy such as: “Any relationship that affects your ability to do your job may be a valid reason for firing.”

We suggest that you do have a statement in your policy guide that requires supervisors and managers who enter into a relationship with a subordinate to report the relationship to upper management.
The revelation of this relationship is not a reason to terminate either employee, it is however a good reason to seek additional help from an experienced HR professional or legal advisor.

Don’t ignore these types of relationships and walk blindly into a sexual harassment complaint. Consensual relationships can turn ugly for the employer when one of the two parties decides to end the relationship.

6. Salary offers that offer too much — Employees and their attorneys will try to interpret everything the company says literally — especially when it comes to money. For example, telling employees what their “annual salary” is when they’re hired could imply that you intend to pay them for an entire year, no matter what. Instead, the statement should read something like, “an annual salary of (blank), earned and paid biweekly, monthly, etc.”

We suggest that businesses should be in the habit of using a carefully crafted offer letter when new employment is offered to an applicant. A carefully crafted offer letter is a perfect opportunity to notify the new employee that employment is on an at-will basis and that there is no basis for employment other than at-will.

An offer letter should cover how an employee earns paid time off, what the maximum level of accrued time off is and how accrued time off is handled at the end of the employment relationship.
Please ask your assigned HR Advisor with some assistance in this area if you aren’t using offer letters at the beginning of new employment relationships.

7. Too many details — Sometimes, listing too many specific behaviors that warrant discipline can make it difficult to discipline for other issues. For example, if a dress code includes 35 things employees aren’t allowed to wear, there’s likely to be some resistance when a manager tries to punish someone for inappropriate dress that hasn’t been explicitly spelled out.

A policy guide – and by the way, don’t call your company document a handbook, in the past courts have ruled that calling your document a handbook creates a situation where the business loses flexibility. A handbook is viewed by the courts as more stringent than a policy guide.

It is our hope that when you have a properly crafted policy guide that you can spend less time worrying about this subject and then you can get back to business.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

Does FMLA Protect Grandfather Caring for His Grandchild?

“I needed time off to take care of my grandchild,” insisted payroll supervisor William Hamm. “I’m entitled to that leave under the FMLA.”

“As a grandfather, you don’t qualify for leave to take care of your daughter’s kid,” said Human Resources Director Jennifer Lyons. “Besides, you were fired for performance issues, not for taking leave.”

Was worker protected by FMLA?

Facts: The employer hired a payroll supervisor on a contractual basis subject to annual renewal. Initially, the worker’s performance was highly rated by the employer.
The employee’s daughter, a student and Army Reserve member, gave birth. The employee financially supported his daughter, a single parent, and the grandchild, and also cared for the grandchild while his daughter was away at school or Army Reserve obligations.

Concerned with his declining work performance, the employer gave the employee a performance improvement plan requiring him to “demonstrate significant progress” through a one-month period.

Meanwhile, the employee’s daughter was informed that her unit would be deployed overseas. The employee submitted a request for 12 weeks of FMLA leave to care for his grandchild, beginning on May 7. The request was approved through June 30, but not beyond the June 30 scheduled expiration of the employee’s annual contract.

The employee began leave, but his daughter was never deployed. The employee continued to care for his grandchild when his daughter was at school or away for Reserve weekend drills. On June 21, the employee received a letter from his supervisor stating that the employer decided not to renew his contract because he failed to complete his performance improvement plan.

The employee sued under the FMLA, alleging unlawful interference and retaliation for exercising his statutory right to leave. The U.S. District Court for the Middle District of Florida ruled for the employer, finding that the employee’s leave was not FMLA-protected. The employee appealed.

Award: The employee may pursue his FMLA interference and retaliation claims, the U.S. Court of Appeals for the Eleventh Circuit ruled Sept. 30 (Martin v. Brevard County Pub. Schs., 11th Cir., No. 07-11196, 9/30/08).

Discussion: The FMLA provides otherwise eligible employees with up to 12 weeks’ unpaid leave for the birth or adoption of a child or for situations in which an employee acts in loco parentis, the appeals court observed.

“We cannot agree with the district court that no reasonable jury could find that [the employee] stood in loco parentis (Latin: in the place of a parent, either parent of a minor, a guardian, or a person standing in loco parentis in order for a person to be considered in loco parentis, he or she must have intentionally assumed the rights and duties of a parent) to [the grandchild] while he was on FMLA leave,” the court said. “During that period, [the employee] provided [his grandchild and daughter] substantial financial support, including a home, food, and health insurance,” the court said. The worker “also played a significant role in caring for [the grandchild] even though [his daughter] was never deployed overseas,” it said. “We cannot say as a matter of law that [the employee] stood in loco parentis to [his grandchild]; nor can we say that he did not. [The employee] has presented sufficient evidence to create a genuine issue of material fact, and the district court erred in concluding otherwise.”

Assuming the employee’s leave was FMLA-covered, the appeals court said the employee raised a triable issue of unlawful interference with his statutory right to reinstatement. A jury could find either that the employer terminated the employee for performance issues unrelated to his leave or that the employee effectively was fired for taking leave that coincided with his probationary period, the court said. If the jury finds the latter, then the employee has shown unlawful interference, the appeals court said.

Pointers: Under the FMLA, family members are an employee’s:

• spouse, as defined under state law where the employee resides;

• children, including biological, adopted, foster, and stepchildren, legal wards, and children for whom the employee has day-to-day and financial responsibility (children must be under age 18 or over 18 and incapable of self-care because of a physical or mental disability); and

• parents, including biological mother and father and persons who had day-to-day and financial responsibility to care for the employee as a child.

Some states have family and medical leave laws that include other family members in addition to spouse, child, and parent. Employers should review their state laws for more information.

(This article was originally published in the November 4, 2008 issue of BNA, Inc. Bulletin to Management)

Final thoughts – when dealing with FMLA issues it is a good idea to ask lots of questions before telling an employee that leave under FMLA will not be allowed. Even though FMLA has been law for over 15 years it seems that new wrinkles develop out of court cases each and every year.

Generally, a grandparent would not qualify for leave under FMLA to care for a grandchild. In this case, the grandfather had assumed the duties of a parent by offering and taking responsibility for day to day financial (and other) responsibilities.

This is not a settled case. The case has been allowed to proceed to determine if the employer is guilty of interfering with the employees rights under FMLA.

We suggest that when these kinds of issues come up you should call your assigned HR Advisor. We may not have an immediate answer to every question, however, the HR Department at A Plus Benefits has the tools to find the right answer to seemingly obscure questions or situations.

Pass the task of answering these difficult questions to us so you can get back to business.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.