HR Policies: Exhibit ‘A’ for You or Them?

Time after time, your success in court depends on your policies. Either an employee claims you violated your policy, or you claim the employee did. In either case, the policy is exhibit A, and it's likely to be dissected line by line. Are your policies ready?

How do you best ensure that your HR policies will hold up in court? Below are five bulletproof suggestions:

Tip 1: Be Aware (and Beware) of State Laws
Many employers are caught in lawsuits where the employer's policy complied with federal laws, but neglected to consider the impact of relevant state laws.

There are countless ways in which state and federal law overlap and diverge. Here are several of the most common:

Antidiscrimination
The federal antidiscrimination laws protect employees in organizations with 15 or more employees (Title VII and ADA), 20 or more employees (ADEA), or regardless of employer size (USERRA).

In comparison, most states have established antidiscrimination laws that cover employers with anywhere from one employee (e.g., Alaska, Colorado, and Michigan) to 12 employees (e.g., West Virginia).

Protected Classes
Under federal antidiscrimination law, employees are protected because of sex, race, ethnicity, age, national origin, disability, and service in the armed services.

A majority of states have moved to expand the protected classes of employees, adding sexual orientation and gender identity (e.g., Illinois, Maine, and Washington); use of lawful products (smoking) (e.g., California, Colorado, and Connecticut); genetic discrimination, HIV/AIDs, and/or sickle-cell trait (e.g., Arizona, Iowa, Kentucky, Maine, and North Carolina); arrest, conviction, and military records (e.g., North Carolina, California, Maryland, and Michigan); and marital status (e.g., Alaska, Illinois, Montana, and Nebraska) to name just a few. (The above list is not all inclusive).

Leaves of Absence
A number of states have adopted state-specific FMLA-type laws that generally follow the federal FMLA, with a few exceptions critical to employers in those states. For example, Connecticut allows for 16 weeks of protected family leave in a 24-month period (versus 12 weeks in a 12-month period under federal FMLA).

In addition, many states have adopted medical leave provisions for organ and bone marrow donation and blood donation (e.g., Arkansas, Connecticut, Illinois, Minnesota, and New York); leave for crime victims (e.g., California, Colorado, and Oregon); and leave for school visitation or other family obligations (e.g., California, Illinois, North Carolina, and Vermont).

Wage and Hour Provisions
The federal Fair Labor Standards Act (FLSA) is often supplemented by state laws regarding minimum wage, overtime, and meal or break periods. For example:
Overtime. Many states have chosen to diverge from the federal minimum overtime requirements for all hours worked in excess of 40 hours per week. For example, Alaska state law requires overtime for hours worked in excess of 8 hours per day.

Some states have legislated overtime requirements for specific industries in which overtime is frequent. For example, in New York, all hours worked by “resort employees” on the seventh consecutive workday are paid at an overtime rate.

Meal or break periods. The federal FLSA does not regulate meal or break periods. As a result, many states have stepped in and created their own rules. State provisions usually specify the number of hours that an employee must work to qualify for a break. North Carolina does not have a supplemental law at this time.

Tip 2: Make a Policy, Not a Contract
Depending on the specific facts of a case, state courts throughout the country have ruled that policy wording in employee handbooks may, in some circumstances, create a contract between employer and employee.

In this climate, you must treat your handbook that explains your policies as a quasi-legal document; and for this reason, it is best to seek an attorney’s advice in drafting the language.

Get Signatures
All workers should be asked to sign an acknowledgment that they have received and understand the policies in the handbook.

Tip 3: Train Supervisors and Employees
Of course, perfect policies are only half the battle—supervisors and employees must not only know what the company’s policies are, but they must also understand the reasons behind them. Without this understanding, they cannot effectively enforce and follow the policies.

Simply passing out policy manuals and suggesting that supervisors and employees read them isn't going to get the job done. Training is necessary, particularly if you have added new staff, changed any policies, or modified policies or procedures.

Tip 4: Coordinate Your Policy Manual with Other Manuals
Most companies have at least two types of policy manuals: one aimed at supervisors and managers and the other aimed at employees, usually called the “employee handbook.”

In addition, there may be a number of supplementary publications in the form of booklets or brochures describing the company’s programs in such areas as employee benefits, tuition aid, health and medical services, etc.

The important thing is to keep all policy-related publications current and in conformance with each other. A policy in one publication that is contradicted by a policy in another publication won't count for much in court.

There must be a single, up-to-date, authoritative source of guidance and information to which managers and supervisors can turn.

Tip 5: Keep Your Manual Up to Date
The work of policy management never really ends. In most companies a group of employees meets regularly to review changes in the law, government regulations, management philosophy, and employee benefits.

Remember that while an organization can change its policies at any time, those changes should be announced before—and not after—the fact and introduced to all employees, supervisors, and managers.

Also, keep in mind that some states require employers to provide employees with consideration (something of value beyond continued employment) if they reduce or eliminate a promised benefit (e.g., vacation).

How about your policies? Ready to be "Exhibit A" in court? Our editors estimate that there are 50 or so policies that need regular updating (or may need to be written.) It's easy to let this slide, but you can't afford to back-burner work on your policies—they're your only hope for consistent and compliant management that avoids lawsuits.

Many of you have heard me speak of "exhibit A" regarding not only your policies, but your job descriptions, disciplinary write-ups or any document related to requirements or conduct of employees. I always remind you to think about what you write, if you wouldn't want to see it as "exhibit A" in a court of law or on the front page of the Charlotte Observer, DON'T WRITE IT!

Contact The Whitford Group for assistance at TheWhitfordGroup@aol.com

by Steve Bruce - Summarized