THE A TO Z OF PERSONNEL POLICIES
This short book will not attempt to show you how to write an entire personnel policy manual. It will explain some of the basic legal issues behind policies and why good written policies that are properly followed help employers defend against unemployment claims and other forms of post-termination problems, such as EEOC claims and employment-related lawsuits. Part II contains outlines of legal issues dealing with certain employment-related situations not directly addressed in other sections of Especially for Texas Employers, and Part III features sample policies and forms that illustrate many of the policy and documentation concepts discussed in the book.
All policies and procedures should be included in the handbook. Every aspect of the employment relationship should be addressed. These areas can be divided into categories such as:
Employer expectations - Attendance, leave, job requirements, or drug policy
Employee expectations - Compensation, benefits, grievance procedures, equal employment opportunity, sexual harassment, and right to privacy
Administrative issues - Changes to the handbook, representations, and disclaimers
Following this general outline of personnel policy issues, the rest of this book outlines some of the major topics that should be covered in an employee handbook. A checklist is provided for each topic. In addition, sample policies are presented in the Appendix to this book for some of the topics in order to illustrate what a typical policy in that area of employee relations looks like. Finally, the Appendix includes some sample forms that are sometimes important for employees to sign.
Important Caution!
While this book attempts to help employers as much as possible with this difficult but essential area of workforce management, it cannot serve as a substitute for individual legal advice from a competent and experienced employment law attorney licensed in Texas or in your other state(s) of operation. These sample policies and forms are not meant to be taken "as is" and incorporated directly into an employee handbook. Rather, they are meant to help employers visualize what is meant by certain policies and legal issues and to help them prepare to work more efficiently with their own employment law attorneys. In addition, employers may always take advantage of the toll-free help line, offered by the employer commissioner's office at TWC, for employers in Texas: 1-800-832-9394 (direct line: 1-512-463-2826).
Basic Legal Issues
Policies are generally up to the employer to define and enforce. The employment at will doctrine in Texas gives employers the right to set policies and change them at will depending upon the needs of the business. The few exceptions are so well-established that most employers do not even consider them to be policy areas:
pay (minimum wage and overtime restrictions);
no illegally discriminatory hiring, personnel, or termination practices;
safety (OSHA and Texas workers' compensation regulations); and
other areas, such as how benefit plans are communicated, modified, and administered (ERISA and COBRA).
Policies can be oral or written or a combination of both, but ideally, all important policies should be in writing.
Employers can generally change policies at a moment's notice.
In Texas, policies are not regarded as binding employment contracts.
Preparing an Employee Policy Manual
Decide what your company is all about and what kind of culture your company is trying to have within the workplace. Communicate those goals and culture in your policies.
Assemble all previous policies and procedures, whether written or unwritten. You will need to determine what will be continued or changed in the new policies.
Talk with employees and managers about their concerns in the area of employee policies.
Draft a preliminary document.
Have key company personnel review the draft, incorporate any needed changes, and have the final version reviewed by an employment law attorney.
Give every employee a copy of the policy handbook and have each employee sign and date a form acknowledging receipt. The acknowledgment of receipt form should have each employee affirm that they have received a copy, have had an opportunity to ask questions about the handbook, and that they agree to comply with the company's policies. Have a company representative witness the employee's signature and sign and date the same form.
After giving all employees copies, train all supervisory personnel in how to use the handbook.
Practical Issues with Policies
Although employers have the right to change policies at will, it may not be advisable to do so without at least attempting to give advance notice. If a policy change alters an employee's work relationship so much and so adversely that a reasonable employee would quit under the circumstances, the employer could face a loss in an unemployment claim.
Employers should attempt to anticipate potential problems and think of alternatives when considering policy changes. Aside from unemployment claims, employers could also face a loss in employee morale and productivity with ill-advised or ill-timed policy changes.
Whatever the policies are, it is usually best to have them in writing and give copies to all employees. The best policies in the world will do no good at all if the employees are unaware of them. Employers sometimes lose unemployment claims if they are unable to show that the claimant had been informed of the policies he or she violated.
Above all, employers should try to follow their own policies, especially with respect to disciplinary matters. One of the easiest ways to lose an unemployment claim is to have to admit that the disciplinary process that was announced in the policy was for some non-compelling reason not followed in the claimant's case. Remember, one thing that must be shown in every discharge case is how the claimant either knew or should have known he could lose his job for the reason given. If the policy talks about two verbal warnings, a written warning, a suspension, and then discharge, and the claimant is fired after only two verbal warnings, the employer will lose the case, unless it can somehow show a compelling reason for why the policy was ignored in the claimant's case. Proper and reliable enforcement of policies will also help the employer defend itself in discrimination claims and lawsuits.
Similarly, employers must be vigilant and careful to enforce the policies even-handedly and consistently. If the claimant was fired for an offense for which others were only warned, and there was no compelling reason for treating the claimant differently, the employer will lose an unemployment claim. Even-handed enforcement of policies will also help employers defend against claims of discrimination and wrongful discharge.
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