It may be time for employers to check their Employee Handbooks. Recent case law has made updating handbooks a wise idea.
For instance, a Pennsylvania court found that an Employee Handbook creates a contract and upheld a $187.6 million award against Wal-Mart for its failure to provide paid breaks to employees as detailed in its handbook.
Many recent states courts decisions have found that and policies in Employee Handbooks create a contract that can alter the nature of employment relationships, even in at will employment states.
You are probably thinking, “Maybe I should not have an Employee Handbook?” That is the wrong answer for a very simple reason.
Many times an employer has called my office to ask for an opinion on employee discipline after some workplace infraction. My first question concerns the policies and procedures that have been previously communicated to the employee. Did the employee have notice that the behavior was not tolerated in the workplace and notice of the procedures that are in place for discipline?
If the answer to these questions is not clear, then it is likely that any attempt at discipline may lead to a claim from the employee of unfair treatment or lack of notice.
What should be done? Use an appropriate disclaimer in your Employee Handbooks in an attempt to avoid additional employment terms as a result of the policies and procedures in the manual. Since a disclaimer might not be effective in avoiding a binding obligation, be certain to review your manual to determine that every policy and promise in the handbook is consistent with the employment relationship you intend to create.
Another issue has developed recently concerning sick leave documentation that may place your manual out of compliance with developing case law.
Courts in California and New York have recently ruled that employers may not require reasons for sick leave. Policies that require a doctor’s note to disclose the nature or reason for the absence may violate the American’s with Disabilities Act (ADA). In the New York case, the Second Circuit Court of Appeals ruled that a policy that required employees returning to work after four days or more of absence to provide a medical certificate with a general diagnosis, may tend to reveal a disability or give rise to the perception of a disability in violation of the ADA. A California case relied on that analysis in disapproving of Dillard’s sick leave policy because it required any health related absence to be supported by a doctor’s note stating the nature of the absence.
Employers should review their handbooks to insure that sick leave policies and procedures do not run afoul of the ADA given these recent rulings that are certain to be expanded to other states.
Most importantly, if you downloaded your Employee Manual from the Internet, you might want to contact our office for a review of your Employee Manual sooner rather than later.