[spiderlily]

At a contractor licensing seminar this winter, a very sharp attorney said that you would be crazy to have an employee handbook, that it is a huge legal liability if something does go wrong.

What do you think of this?

We have never had a handbook, but only a sheet of "employee guidelines" that briefly spelled out our rules for employees, but not our responsibilities to them, or any consequences.

[Stonehenge]

What were some of the examples the attorney gave? This seems counterintuitive, because you can't even think about getting ISO certification without manuals for every position in the company, more or less. Not that anyone is necessarily going after that, but I know a few that have wanted to.

Every franchise on the planet uses manuals.

I'm curious about this person's reasoning.

[Nathaniel Carr]

I just bought the Michael Stone employee manual. After going over it to make it fit my situation I am sending it to my attorney. I'll tell you what he says.

[jwholden]

I'll second the stone employee manual. I am sure it doesn't cover all the little tidbits of legal mumbo jumbo that the state and feds require. However, it does spell out the ground rules very nicely as far as what is expected of employees.

I.E. If an employee fails to show for work for three days he will be considered to have quit his job.

[VoodooChile]

I'll jump in here, since I actually attended the seminars, three 4 hour sessions of training to obtain Wisconsin Dwelling Contractor Certification status. Wisconsin Dwelling Contractor Certification is now necessary if you want to be able to pull a permit in Wisconsin. And yes, landscapers need to be able to pull permits here, if for instance, you want to build a patio...legally.

The attorney listed the following disadvantages of an employee handbook:

1) Potential for creating enforceable obligations (i.e. contracts) with employees.

2) Practical difficulties enforcing or following handbook procedures.

3) Potential appearance of being overly technical or heavy-handed, particularly in small operations.

4) Potential increased litigation if the handbook is not well prepared or well followed.

The gist of his argument was that an employee handbook creates a documented standard of treatment to which you can be held , as an employer, in a court of law. Any inconsistency between your handbook and your treatment of an employee can be grounds for litigation.

The attorney also listed several things to avoid in an employee handbook:

1) Avoid promises and guarantees. If you make a promise in a handbook, you must be sure that you really intend to keep it.

2) Avoid policies that create standards against which the employers' performance must be measured. Examples include "just cause", "reasonable", and "appropriate".

3) Avoid creating employee categories that suggest greater job protection for certain employees. The most common misstep is to create "probationary" and "permanent" employees.

4) Avoid creating a mandatory progressive discipline system. Always reserve the right to vary procedures when circumstances call for it.

Something to think about, next time you want to murder one of your guys.

[Nathaniel Carr]

I'd say if you were winging it...yeah... most of us would be in over our heads. The manual I bought from Michael Stone has got all that figured out, plus it is strongly suggested to have an attorney read it.
I could poke a hole in some of this guys reasoning, that is what you put it up there for right?
"2) Practical difficulties enforcing or following handbook procedures." If it is your policy you should follow it. If you are the boss act like it! Know your own policies and have the discipline to follow them. Know what I mean.

[VoodooChile]

Fire away! I'm just sharing what the attorney said, not endorsing it.

[GLAN]

employee manual.........If you have 10 or more employees, I could undestand it.

For the operations of 2, 3, 5 or so employees.......Why bother?

Just a few simple rules......show up on time, arrive clean and alert, do the job that is expected to the quality that is expected and in the time frame that is expected.........if you provide some sort of uniform, that they wear it.

What more could you possibly want?

Any thing that pops up along the way........you deal with it.

[Nathaniel Carr]

Yeah good point.

[Stonehenge]

What I find interesting about those caveats is not that they seem unreasonable Voodoo, but that they seem like they could be integrated easily into a manual. Like thing to avoid #4, leaving yourself room to vary the type and severity of discipline. I do something similar with our client contracts, saying that if I don't enforce one element of the contract I'm still free to enforce the rest of them, and enforcement is at my discretion.

I agree that if you have a handbook/manual, you need to follow it and not make it a seldom-used tool of convenience to terminate an employee when the mood strikes you.

It's always a kick to see how the employer, who often spreads him/herself super-thin just to be able to run their operations, foregoing many of the nice things their own employees get, like time with family, end up being portrayed as villains because they're organized, ala disadvantage #4.

Anyway, excellent discussion.

[Terre]

I think a lot of it pertains to state by state laws, as well. Here, I can fire someone for looking at me wrong, and the employee has no recourse.

Case in point, I used to be manager of a local office that was a branch of a nationwide company. I fired one of my employees one day, on the spot, because she was using the company computer to search Monster.com job listings. Our corporate HR dept nearly fainted. Apparently in other states I would have had to given a verbal warning, then a written warning and could only fire on the 3rd offense. All because it was an offense not specifically covered in the employee manual as being grounds for immediate termination. HR actually wrote me up for firing her without giving the three strikes warning.

In part, that may be what that lawyer is referring to. Some states actually have labor boards that care about employees and go to bat for them. Colorado isn't one of them.

[GLAN]

This is an interesting side topic........pertaining to State to State issues.

Some years ago I had a guy working for me.....2, maybe 3 seasons.....The last season he worked for us, he was less enthusiastic and causing more mistakes.....There was an incident where he didn't understand what I was saying. He then became verbaly abusive....Well...I nipped that in the bud........and chaulked it up to a frustrating momment.

After the rest of the day off and the next.........He finished the season......applied and received unemployment.....Comes spring, he never returned.

I called unemployment stating he never returned at the specified date and to stop charging my account for his benefits....

Know what I was told?................He doesn't have to come back and he is still eligable for the term of his benefits.

This is the State of NY

[Matt Kulp]

I have never heard an attorney with that point of view.

For us, we have found that without a handbook, it opens us up to more issues than not having one. When we did not have a handbook, we always had issues with trying to get relief from unemployment when we released an employee. We were told more than once that since we did not have written policy that the employee had no formal policy to follow, and thus could not be held responsible for his actions (too many sick days, attitude, competence, etc.).

I agree that if you have formal company policy and do not follow it to a T, you could open yourself up to even more legal issues. You are in essence creating a contract between the company and the employee, and if either do not follow the set policies that person(s) would be in breach of the contract. We never used a formal handbook until we had about 10 employees, but now we refer to it often when making employee related decisions. It is very important to have your disciplinary system spelled out and followed no matter who the employee is. If you do not have policy in place for disciplinary actions, you will always loose Unemployment battles in the courtroom. Our company handbook is probably close to 100 pages and we are adding to it all the time. Things change and we ALWAYS have our employees sign all the amendment's to the contract, just as we would have a customer sign change orders.

[Stonehenge]

@Terre, Wisconsin is also an "at will" state, which I understand to mean that an employee can be fired without cause.

[Matt Kulp]

Pa is "at will" also, but that only means that they can be fired, not that you can't be held responsible to support them while they are out of a job.