Swerdlow Florence Sanchez Swerdlow Wimmer

When a company contacts its attorney regarding an employment issue, often one of the first questions that the attorney asks is: "What does your policy say on the issue?" The policy often is the starting point for legal analysis on employment issues. Written policies typically are found in a company's employee handbook. Some companies, however, do not have employee handbooks or written policies. Every company, nonetheless, has "employment policies." When there are no written policies, the employment policies are created by personnel practices or established precedents.

In today's more litigation-prone world, every business needs professional, well designed and thought-out written policies and procedures.

Employee Handbook

Having written employment policies can greatly assist a company in managing its employees effectively. For this reason, we strongly recommend that every company adopt and implement an employee handbook. A common question that clients ask when considering an employee handbook is whether the employee handbook creates a contract, and, if so, whether or not it is better to not have anything in writing. Yes, an employee handbook can create a contract; however, even having unwritten personnel practices can create a contract. You, therefore, do not provide better protection just because the policy it is not written. Further, if the policy is not written, it is subject to greater ambiguity and inconsistency, potentially creating greater risk of liability.

Employee handbooks can be very simple or very formal. Their format is completely up to the company. More important than the format is the substance. The key to creating proper employee handbooks or written policies is to remember that they must accurately reflect what the company does. They should not be a "wish list" for what the human resources department hopes the supervisors will do; they must state how the company truly handles the issue. For example, one company had a written policy that said performance appraisals were to be performed every six months, but the company was erratic at doing the appraisals, and some departments did not do them at all. When that company terminated an employee for poor performance and, subsequently, was sued for wrongful termination and breach of implied contract, its defense was severely weakened by the fact that its handbook said one thing, but in reality, it did something else.

Two policies that are crucial for employee handbooks are policies on equal employment opportunity and harassment.

:: Practices & Policies ::

Human Resources

Employee Handbook