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Enforceability & Liability of an Employee Handbook

Posted by:

Ann Cascanett

How Often Should My Company Review its Employee Handbook?

It is imperative to regularly review and update one’s employee handbook to avoid liabilities.  More specifically, the individual needs of each workplace should be considered and assessed with the requirements of state and federal law.  Policies should be developed that reflect not only the size and philosophy of the company, but also the needs of its employees.  It’s prudent to have an employment lawyer review and regularly update one’s employee handbook in order to ensure it is enforceable and is written to shield the company from foreseeable liability, as it relates to its employees, past, present, and future. Without such review and implementation, employers can make themselves vulnerable to litigation for having outdated, erroneous, or absent policies that could protect them.

The specific language of the policies can create liabilities not intended by employers.  If policies become too specific and/or do not contain disclaiming language,  an implied contract can be created.  Implied contracts can overrides the liberal policies of being an at-will employment state.  Thus, opening up employers to liabilities and lawsuits it never intended.

What Topics Should My Employee Handbook Cover?

At a minimum an employee handbook should cover the following topics:

  1. 1. That employment is at-will (this should be addressed regularly throughout the handbook)
  2. 2. A Non-harassment statement (as required by Massachusetts statute)
  3. 3. A social media policy
  4. 4. A standards of conduct policy
  5. 5. A signature page(s) (indicating an employee has received and accepts the handbook with due consideration); and an anti-retaliation policy.
  6. 6. An arbitration clause should be considered in order to limit the expense and time of traditional litigation.

It is prudent that these issues be reviewed and drafted by an employment attorney to avoid the creation of any unintentional liabilities such as an implied or actual employment contract, which would severely limit a company’s ability to terminate an employee.

New Case Law In Massachusetts

Recent Massachusetts case law indicates that clauses which indicate that an employer may change and/or add to its employee handbook without notice to employees can cause certain clauses to be unenforceable, especially those governing arbitration clauses.  As such, it is likely that to create an enforceable handbook that limits a company’s liability, the handbook may need to be divided into specific sections, which will likely require separate signatures from the employee.  This is a departure from the traditional handbook which has one signature indicating review and receipt of the handbook.

For consultation to draft an employee handbook, or for assistance reviewing and updating an employee handbook, contact Cascanett Law.

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