Hey, Watch the Language! (In Your Employee Handbook)Posted: September 13, 2022
Every company needs an employee handbook to ensure that everyone understands the policies, procedures and rules of the organization.
An Employee’s Genetic Information Is a Protected Class
The Genetics Information Nondiscrimination Act of 2008 (GINA) protects employees from discrimination based on their genetic information. GINA also prohibits health insurance carriers and group health plans from using genetic information to deny coverage.
Typical employee handbooks outline the nondiscrimination requirements of the Equal Employment Opportunity Commission to not base employment decisions on factors such as gender, age, pregnancy, race, color, religion, country of origin, citizenship, mental or physical disability, or military service or veteran status. Employers who haven’t already done so should add genetic information to this list.
In addition, ensure that you also list any factors required by state and local law, which might include political affiliation, sexual orientation, gender identity, familial status and marital status.
However, an improperly written handbook can inadvertently 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 this in mind when crafting or revising your employee handbook, so you can lower the risk of legal claims by litigious employees. Here’s 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 handbook 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 to the handbook at any time, without notice.
Do require employees to affirm in writing that they have read the handbook, 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 create a presumption that the parties intended it to be a contract. This forces the employer to prove to a jury that a contract wasn’t intended.
However, there are instances where courts have found handbooks unenforceable as contracts for reasons such 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 , revising and distributing handbook. It’s a good idea to get an attorney’s help when spelling out policies and procedures. By doing so, you’ll reduce the chance of a costly, time-consuming and disruptive legal battle.