I’ve resisted posting on this subject for a few days because at first I honestly thought it was a hoax. But now that blogs across the United States are chiming on on this, including a recap post by Overlawyered this morning, it’s worth adding a Connecticut perspective.
Now, you might say, that’s it??? An employee handbook? After all, in Connecticut, the last time a handbook made any sort of headlines was back in 1995 regarding the Connecticut Supreme Court case of Torosyan v. Boehringer Ingelheim Corp.
But this is no ordinary handbook. According to a L.A. Times article, what makes this handbook special is that it is written from a non-lawyer perspective. Indeed, according to the article, the new handbook is the handiwork of Randy Michaels, Tribune CEO for interactive and broadcasting, who believes it will reduce liability.
However, as the California Employee Rights Blog has been quick to point out — there is a difference between writing in "plain English" and flouting employment laws. Add to that a lack of true guidance on certain issues, and the new handbook may run into some problems.
For example, here is the provision on "Interpersonal relationships"
Under Rule #1, you may want to think twice before you enter into an intimate relationship with a co-worker. When you start, it might seem like a good idea. It’s when you stop, or the wrong people find out (and they will) that you could discover that perhaps it wasn’t.
(In case you are wondering, Rule #1 is "Use your Best Judgment") So what does this rule mean? Does that mean that supervisors are allowed to have relationships with their subordinates? Or is it strictly a "cautionary tale" — and if so, why even have the provision in there?
There are lots of other provisions that are being commented on, including the anti-harassment policy which states:
Working at Tribune means accepting that sometimes you might hear a word that you…might not use…experience an attitude you don’t share…[or] hear a joke that you might not consider funny.
This should be understood, should not be a surprise and is not considered harassment.
and the "question authority" provision which states:
Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions.
I do not disagree with the premise that employee handbooks can and should be written in plain English so that all employees (including human resources personnel) should understand them. However, personnel policies and procedures should also provide employees with parameters on their behavior and provide guidance on how to comply with the law. The two ideas are not opposite of one another.
While it’s is nice to think that all employees will "Use their Best Judgment", the reality is that a small portion will not. In many ways, it is for this small group of employees that policies and procedures are written — not the rest of the employee population. Moreover, handbooks can and should be used by human resources personnel to provide some guidance on issues — without seeking legal advice each time an employee, for example, is absent from work. Abbreviating a handbook to the point where it is short and pithy without being informative, is, in my view, a recipe for unwanted litigation.
Employee handbooks have become standardized over the years not because of "lawyers" but because they work. Employers have been quick to recognize that a well-drafted handbook can reduce litigation related to employment and provide answers to sticky questions.
As I said back in October, handbooks should be updated to be clear and understandable. And there are plenty of capable lawyers who can draft these handbooks in simple and straightforward language that employees can comprehend AND that complies with the law. But without a legal review of the handbook, the employer is creating problems that can — and should — be easily avoided in the future.