Employee Handbooks Can be a Company’s Best Defense
YOUNGSTOWN, Ohio – When it comes to protecting themselves and their employees, the best course of action for business leaders is to get it in writing. Discipline and accusations should all be documented.
And for a company’s policies, the best way to disseminate that information is often through a handbook, given to and signed by each employee, leaving no ambiguity of who knows what.
“Generally, employers need to have an employee handbook. Your best protection when a claim comes up is [saying] ‘We have these policies in place. The employees were aware. The policies applied to everyone,’ ” says Christina Papa, attorney with Roth Blair Roberts Strasfeld & Lodge in Youngstown. “That will help a lot more than policies that are word of mouth. It creates a level playing field and everyone knows what they are and that they have to abide by them.”
Among the most important elements to include are basic expectations of employees – what time the workday begins and ends, benefits, how to make requests for vacation time, etc. – and policies that outline how investigations into misconduct will be handled.
The first step in such investigations, says attorney Stephanie Harley of Ulmer & Berne LLP, Cleveland, is gathering a written statement from the accuser and identifying who the alleged perpetrator is, along with where it took place and any potential witnesses.
“You have to get as much information as you can from the complaining party. After you have that, you want to meet with witnesses and find out what they know. You’ll also pull whatever electronic evidence there may be, whether it’s email, text messages, social media postings or video surveillance,” she says. “Once you have that, sit down with the person accused of misconduct, talk with him or her about the allegations and get their side of the story,” before making a decision.
The method of investigations for accusations of discrimination or sexual harassment and/or assault should largely follow the same steps, advises Robert Yallech, attorney in the Youngstown office of Reminger Co. LPA.
“That process can apply to any sort of harassment in the workplace, whether it’s based on sex, gender, [sexual] orientation, race,” he says. “Those are the steps you need to take. Take them in advance and it’ll save a lot of headaches.”
While all forms of harassment and discrimination are to be taken seriously, he adds that sexual harassment is “by far” the most common that he’s seen.
Between October 2017 when the #MeToo movement began and October 2018, the U.S. Equal Employment Opportunity Commission, which handles the enforcement of federal employment discrimination laws, saw the number of sexual harassment charges increase 12% – the first year-to-year increase in a decade – and the number of lawsuits filed increase 50%.
Recoveries totaled nearly $70 million, up from $47.5 million the year before, according to the EEOC. At the same time, traffic to the agency’s website pages regarding sexual harassment and assault more than doubled.
“The fear, that’s comes to pass, was that it would trickle down into ‘normal’ workplaces. And it did,” Yallech says. “The takeaway from all that is that employers have to be vigilant about claims of sexual harassment in the workplace. They can expect heightened costs because litigation is expensive. What most want to know from us is how they can avoid legal fees and downtime for employees during investigations.”
Investigations should always be started as quickly after the allegation is made as possible “regardless of merit,” adds Manchester Newman & Bennett attorney Ted Thornton. Waiting to conduct an investigation, or brushing off the accusation all together, can weaken a company’s defense should a case go to court.
“[The investigation should be] totally independent and as timely as possible,” Thornton says.
There should also be multiple methods of reporting outlined in an employee handbook. If, for example, it states that a shift supervisor is the one to report to, but if that supervisor is the one harassing an employee, then the process runs into a wall.
Retaliation, such as shifting an accuser’s hours or transferring them to another department, is also strictly barred by law.
“Don’t make it so it appears as if you’re punishing the victim in any way. If a person is having a difficult time with a co-employee, don’t move them to another department or change their hours,” Thornton says. “It’s the accused that should be the person affected, all the way up to termination depending on the severity of the incident.”
Such policies should be reviewed with employees at least annually, recommends Elizabeth Farbman, attorney at Roth Blair.
“Not only does it educate employees, but it adds in extra protection that shows you have the policy, that you take it seriously and you followed it to make sure no one slipped through the cracks when it comes to knowing the rules,” she says. “To be a productive environment, employers need to make sure they foster an environment that’s welcoming to them.”
Elsewhere in an employee handbook, other hot topics include drug policies. As states move to legalize marijuana, either for medicinal use or recreation, Ulmer & Berne’s Harley says there may be confusion between employers and employees about what is allowed.
“Employees may think that means they can use it at work or come in under the influence. I’ve been doing a lot of training in Ohio, both with managers and employees, to understand that marijuana is legal for medical purposes but that does not mean you can’t have a drug-free workplace policy,” she says. “You should have that policy and enforce it.”
Punishments for misbehavior, ranging from being consistently late to egregious harassment, should also be laid out. At Roth Blair, Papa and Farbman say progressive discipline is often the best policy to have, as punishments increase the more frequent or extreme the behaviors.
“Not only does this fill the file, but it sets expectations and can be a chance to rehabilitate. You want to retain [employees]. Maybe they’re going through a difficult time or maybe there was ambiguity,” Farbman says. “You have to make sure policies are followed through. If you have someone who doesn’t buy in, then you may have the rest of your employees not buy in.”
Policies that cover critical areas such as sexual harassment or terms of employment should be presented as separate documents that are signed by employees, he adds, providing an extra layer of proof that they were aware of its contents.
“If you want to use your handbook in defense of a claim, you better have proof the employee had the handbook and had a chance to read and ask questions about it,” Reminger’s Yallech adds. “If your employee was hired today and you gave them an employee handbook, that’s great. But if you hired someone 10 years ago and he doesn’t have a handbook or you don’t have evidence he was given one when he was hired, that’s a problem.”
In some cases, though, what’s not included can be just as important to operating a business as what is included. Papa says that handbooks should always be run past legal counsel before given to employees, especially if they’re pulled from an internet resource. She points to one case where a business used the handbook of a company in New Jersey as the basis for its own.
“An Ohio company was providing their employees all these benefits they aren’t entitled to under Ohio law but are under New Jersey law,” she says. “An attorney is going to pick up on that right away but a layperson may not. We’ve seen companies guarantee FMLA [Family and Medical Leave] benefits when they don’t have enough employees to qualify.”
Thornton, meanwhile, recommends having different handbooks for exempt and nonexempt employees. “Generally, benefits for exempt employees are greater than those for nonexempt and it may create some disharmony,” he says.
Copyright 2020 The Business Journal, Youngstown, Ohio.