December 12, 2018
Your company needs an employee handbook or personnel manual to ensure that everyone understands the policies, procedures and rules.
But improperly drawn, a handbook or manual can create a binding obligation that can be used against you.
What you don’t want is for the documents to be interpreted as an employment contract. Keep that in mind when crafting handbooks so you lower the risk of running into unwanted legal hassles. Here is a list of Dos and Don’ts:
Don’t use phrases such as “permanent position” or “the company promises.” There should be no statements that you don’t intend, or may not be able, to honor.
Don’t leave explanations of the results and consequences of actions open to interpretation. Be clear, concise and comprehensive.
Do include a disclaimer that the manual isn’t and shouldn’t be considered an employment contract.
Do reserve the right to use your discretion in individual cases involving policy statements or procedures.
Do reserve the right to make changes at any time, without notice.
Do require employees to affirm in writing that they have read the manual, including disclaimer provisions — and that they understand it’s a general presentation, not a contract.
Many states have held that employee handbooks can be enforceable contracts. Some courts have even found that handbooks or manuals create a presumption that the parties intended it to be a contract. That forces the employer to prove to a jury that a contract wasn’t intended.
However, there are instances where courts have found handbooks unenforceable for such reasons as:
- The terms were so ambiguous that the parties couldn’t have intended to create a contract.
- The handbooks were distributed to employees after they started working for the company.
- An “at will” termination clause was included.
Although these exceptions exist in some states, don’t rely on them when drafting and distributing your manuals and handbooks. It’s a good idea to get professional help when spelling out your policies and procedures. You will reduce the chance of a costly, time-consuming, disruptive legal battle.