Among my clients and many other businesses the question often arises: Do we need written employment policies or employee handbooks or manuals? The following is what I usually advise and why.
In general, there’s no statute mandating that businesses have such policies or manuals. But, relative to public sector contracts, most government agencies require that a business have such policies for affirmative action purposes. Additionally, many employment practices liability insurance carriers require, or very strongly urge, policy holders to institute employment policies. So, practically speaking most businesses that wish to engage in government work, or receive grants or some type of outside funding, or carry employment practices liability insurance, must have policies or manuals.
In other words, government agencies, many outside funders and insurance companies want to see a business’ human capital related documents as much as that business’ financial records. Thus, examination of a companies’ human capital practices is a form of due diligence. Other than these reasons to have written policies, it’s not an absolute necessity for a business to have documented employment policies.
However, businesses that wish to engage in structured planning and development, or that have grown to point where ad hoc policies and procedures are too inefficient and inconsistent should create documented policies or handbooks to avoid operational chaos and protect themselves from 3rd parties like employee side attorneys or regulatory (government) agencies.
There are plenty of cheap and free resources available to help businesses document and plan their HR policies. Some of these resources are credible. However, the problem associated with many of these generalized or template forms is that they don’t’ address the specific regulatory environment businesses are confronted with, or they don’t address the actual needs a company might have. Also, they’re not current. They’re canned.
For example, a business that’s not covered by the Family Medical Leave Act (FMLA) might wish to implement some type of family or partner leave policy. Consequently, that business might institute a policy not contemplated by the canned publications. The same goes for anti-union policies, etc. And, if that same business needs to update policies, the canned publications might not provide those.
Another problem with the canned publications is that many of them emphasize quantity over quality and form over substance. More specifically, they offer a plethora of policies that businesses may never have to address and don’t offer policies for situations that a business actually needs to address.
For example, if a company has never faced any complaint of harassment or discrimination, then having a canned and heavy zero tolerance policy addressing harassment or discrimination might have a demoralizing effect on a workforce. It might be better to address harassment and discrimination in a more general fashion allowing for a range of actions to be taken for verified infractions.
Many canned publications only address sexual harassment as a form of harassment. However, if a company has never faced sexual harassment, but has faced racial harassment, what good does a policy explicitly addressing sexual harassment do for that company?
So, after considering whether or not to have written policies, the next question to answer is what policies to have. Implicit in the above discussion is that the situations encountered by a business and its regulatory environment will dictate policy.
After deciding whether to have or have not employment policies, and which policies to have, a business has to determine what form should these policies take—a written memo, a multi-page document, a bound manual, electronic or a combination of these. Alternatively, a business might choose to put nothing in writing.
Essentially, the decision comes down to company size and complexity and purposes of the policies. The larger and more complex a company is, the greater the need for written employment policies addressing a large number and range of issues; i.e., a larger document. The smaller and less complex a business is means that it will probably have fewer issues to address, and it might not even have to put all of its in policies writing.
However, even a small company in a highly regulated or complex industry, like law, nanotechnology, pharmaceuticals or energy, will probably have to address a greater number of employment issues via written policies; e.g., safety, hygiene, record retention and destruction, and regulatory agency reporting. In short, the complexity of a company and its industry is just as good of an indicator of what form employment policies should take as is the number of employees in that business.
What the policies are intended to address is another important indicator of which policies to implement and put in writing. That is, purpose is a good predictor of what policies are needed and their form. For example, if a 20-year old business has never addressed workplace violence issues, then it probably doesn’t need to address this issue via written policies. Or, at most, it might not need to exhaustively address this issue in writing. However, a two-year old business that is undergoing rapid growth, and is hiring from a population that’s at-risk to violence, might need to be more proactive and address workplace violence at the outset. In this workplace violence example, company size and industry complexity are less of an indicator of policy needs and form than the intended purpose of the policy. In short, a company shouldn’t seek to address issues it hasn’t encountered, unless it could reasonably expect to encounter these issues in the near future, or it’s required by law or regulation to address them.
When discussing what kinds of policies to implement with clients or prospective clients, I often use the “whack-a-mole” game analogy. As soon as you hit the mole another one pops out of another hole, and this forever continues. In other words, as soon as a business thinks that it has sufficiently addressed one workforce policy concern, a new one pops up. It’s impossible to sufficiently cover every issue or circumstance that arises, and it’s impossible to put everything in writing. It the opposite were true, then labor and employment litigation in the U.S. would greatly decrease.
Taking the above argument a step further, a business’ policies, no matter what form they take, should expressly acknowledge the inability to cover everything, and they should explicitly state that the policies are intended as guidelines only. For example, the policies could indicate that it’s impossible to address every situation that may arise, and that the policies aren’t intended as a substitute for common sense or reasonable behavior. They’re intended as general guidelines only. The employer understands that exceptions to the rules may exist and will be handled on a case-by-case basis. Furthermore, the policies should state that they don’t create any form of an employment contract or agreement, and they can be changed at any time and for any reason without cause or prior notice by the employer (this doesn’t mean that the employer shouldn’t communicate any changes or new policies to its workforce; it’s bad management not to). Thus, the need to protect company assets makes putting policies in writing paramount for medium and larger businesses (25 employees and up) and more complex smaller businesses.
With all of this said, some businesses, especially small businesses, believe that it’s better to put nothing in writing. This way, they won’t give contentious employees and their attorneys bad ideas about lawsuits and complaints. Well I understand that logic, but I don’t necessarily agree. The reason I don’t agree is simple—unemployment compensation.
Financially speaking, unemployment compensation (“UC”) disproportionately impacts against smaller businesses to a greater extent than larger businesses. I.e., UC tends to eat up a greater percentage of operating expenses for smaller businesses than it does larger businesses. Furthermore, the people who handle UC claims tend to be sympathetic to claimants (displaced employees) because that’s who the money is for. So UC claims administrators tend to only deny benefits when the employer provides them with documented proof of employee ineligibility; e.g., misconduct, quitting work, absenteeism. Moreover, the UC claims processors usually seek documented proof of violations of employment policies. They expect the employment policies themselves to be in writing. It’s just government bureaucracy.
Consequently, as a general rule, from a cost versus benefit perspective, if a business is paying a lot in UC, it’s better that a business put policies in writing.
As a labor and employment attorney and businessperson, Charles Krugel, has represented management in hundreds of negotiations, in-house and 3rd party proceedings. Charles has over 13 years of experience in the field and he has run his own successful management side practice for the past 7 years.
