Employment & Labor Law

Is Your Employee Handbook Leaving You Exposed?

All employers, large and small, should have employee handbooks. However, simply having an employee handbook is not enough. Employers should also regularly review and update them. Many do not and this can be a critical error.

A properly drafted employee handbook is a vital document. Among other things, it can reinforce the at-will nature of the employer-employee relationship, inform employees of basic rights, responsibilities, and employer expectations, and provide the employer protection against complaints and lawsuits. Employee handbooks that are well drafted and up-to-date can offer a valuable first defense to such actions and significantly limit an employer’s liability while also serving to motivate and guide employees. This is particularly true in the healthcare industry, which is not only heavily regulated but also heavily dependent on a highly skilled and in-demand workforce that is now subject to a shifting landscape as healthcare turns toward performance based care models. In this setting, the employer-employee relationship is of utmost importance.

Federal and state employment and healthcare laws evolve regularly, as do an organization’s practices and culture. Policies and procedures in an employee handbook that are old or not in compliance with current regulations can expose an employer to successful employee claims simply because they do not accurately reflect how the organization is or should be run. Thus, the importance of a current and carefully drafted employee handbook cannot be understated. Below are some questions to ask when contemplating your existing employee handbook:

Does your handbook reflect how you are really operating?
You may be surprised what you find when you consider this question with human resources personnel and managers who regularly handle certain issues. Perhaps what was anticipated when your employee handbook was originally drafted is not what is actually happening now.  For example, how are your attendance and disciplinary policies actually being administered? Is there discrepancy in enforcement between departments or managers?  Be sure that what is written is what is happening and that it is applied uniformly across the organization.

Does your handbook comply with current law?
As mentioned, healthcare and employment laws, as well as the manner in which courts and agencies interpret them, change frequently. Policies that were correct when you first drafted your employee handbook may not be now.  Accurately communicating new standards is essential if an employee handbook is to serve its intended purpose. It is therefore prudent to have counsel review your employee handbook and underlying policies at least every two to three years.

Is your handbook sufficiently detailed and clear?
Employees need to understand their employer’s expectations and requirements. Policies that are complicated or ambiguous can subject an employer to needless difficulties and even legal liability. Conversely, policies that are too generic or general will lack the necessary language and content appropriate to the healthcare world as well as your particular business. Your handbook should clearly communicate the obligations of both employer and employee and be tailored to suit your organization’s specific needs.

Does your handbook include a social media policy?
In this day and age it is nearly impossible to escape the implications associated with employees’ use of tweeting, blogging, and other types of online posting. The myriad of social networking possibilities available today provide numerous venues for employee communication that are difficult to monitor but that may nonetheless expose the employer to liability, particularly in the healthcare field where HIPAA and other privacy regulations are paramount. Any medical provider or practice should have policies that contemplate protecting its patients and reputation as well as a healthy workplace in a world of Facebook and Twitter.

Does your handbook address photography, videotaping, and other recording?
Issues relating to the use of cell phones and similar devices by medical providers and staff raise concerns akin to those surrounding employees’ use of social media. Indeed, sometimes they are interrelated. Advancements in technology have made the recording of images incredibly easy to do yet simultaneously difficult to track. Again, in the business of healthcare – where privacy regulations are pervasive – it is important to craft clear policies that address whether, how, and when medical providers and staff may take photos or videos in the workplace.

Do employees sign an acknowledgment that they received and reviewed the handbook?
A signed acknowledgment can be a valuable piece of evidence to show that an employee received a copy of the employee handbook and was put on notice of the employer’s expectations and requirements. If obtaining such an acknowledgment is a practice that your organization has yet to adopt, a good time to start can be when you update your employee handbook.

These questions present only a sampling of the considerations associated with crafting an employee handbook that offers clarity to your workforce and provides protection to your organization. In addition, policies communicated in an employee handbook need to be tailored for each employer, taking into account variables such as its size, culture, and business. A well drafted, updated employee handbook will engage and inform employees, while also mitigating risk to the employer in a number of critical areas.