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 Stephen
O'Connor, SPHR, is senior director of Professional Search Services
for the MHA Service Corporation, Lansing, and can be e-mailed at
soconnor@mha.org |
Staff
Matters Newsletter
July/August 1999 |
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There are lots of books in the world. Some are filled with exciting and useful information and others are dull, irrelevant tomes. There are also thin books. Very thin books. I recently stumbled upon a list of some of the thinnest books in print. Books like My Plan to Find the Real Killers by OJ Simpson; Things I Would Not Do for Money by Dennis Rodman; George Foreman’s Big Book of Baby Names; The Wild Years by Al Gore; Everything Men Know about Women; and The Amish Phonebook. There is another book that is near and dear to your heart if you are a human resources professional: The Employee Handbook. This formidable document is an organization’s bible; the prescription for how things are to be done and what privileges employees have. It’s essential for the fair, consistent application of the company’s policies. However, it can also create a big problem for the employer if not written properly. Some courts have ruled that employee handbooks could create a binding contract between you and your employees. Such a contract could overrule your ability to change the policies in the handbook at any time, for any reason. A disclaimer that this document does not create a contract could be very useful. A clear and ubiquitous disclaimer statement belongs in every employee’s handbook, including the supervisor’s. The National Institute of Business Management recommends three steps you can take to compile a handbook without creating a binding contract: Distribute manuals to managers on how to apply policies. Written guidance on company policies given to managers usually does not create an employee contract with your employees. Several Hewlett-Packard workers argued that the company offered them an implied contract when it instructed managers to provide "job security based on an employee’s performance." The appeals court found that the manual did not create an employment contract because it was only distributed to managers. They reasoned that the employees could hardly think there was a contract based on a document that was not distributed to them. Include clauses on bypassing progressive discipline. You may still be able to discharge employees at-will if your handbook contains a clause stating you reserve the right to skip progressive discipline. According to the Federal District Court in Massachusetts, if the handbook specifically states that some situations warrant bypassing some or all of the steps of progressive discipline, then the employer may terminate the employee. Continue to include "just cause" clauses where appropriate and where you want to. Simply stating in a handbook that an employee can only be discharged for just cause does not negate an employment-at-will situation. In a 4th Circuit Court case, an employee argued that he was not an at-will employee because the handbook contained the phrase "just cause." The court disagreed saying the phrase was included under the loss-of-service heading and applied to only one of the ways termination could occur. For more information, contact the National Institute of Business Management at (800) 543-2055, because there is one thin book that you don’t want on your bookshelf, Employment Law Suits I Have Won.
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