Many small businesses or new business make a dangerous mistake in their early stages by using a template employee handbook or something found online. There is no such thing as one size fits all employee handbook. The laws can vary by an employer’s size and geography. For example, if an employer has multiple offices in New York and New Jersey, some policies may need to be different for similarly situated employees in different states. Employers should consult with an experienced employment law attorney to carefully craft their policies and procedures. Below are some common issues to be aware of:
1. At Will Employment: This is a big issue. Although most of your workforce may consist of “at will” employees who can be fired for no reason and without cause in general; the presumption that an employee is “at will” is rebuttable. Some poorly drafted employee handbooks can rebut this presumption and enable employees to argue that they have an implied contract of employment. The termination process should be smooth but this error unnecessarily can complicate the process and make it messy.
2. Failure to Include Required Language: Templates are often not up to date. New legislation is passed every year and it is critical to keep your employee handbook up to date and accurate. Here is a link to prior blog post to recent legislative changes in New York.
3. Mistake in Including Unnecessary Language: An example of a common mistake occurs where a small employer includes policy language regarding the federal Family and Medical Leave Act (FMLA). In general, the FMLA only applies to employers with 50 or more employees. Since the handbook includes the FMLA language, this unfortunate small employer may have obligated itself to follow a law that did not apply to its business and increased its areas for potential liability. The application and administration of FMLA can be very time consuming for small businesses. Employees may argue that they should be afforded coverage under the FMLA under estoppel, reliance or other theories.
4. Failure to Distribute: In general, employee handbooks should include an acknowledgement of receipt and understanding page. The handbook should be distributed to all employees and to all new hires. The employer should maintain signed copies of the acknowledgement pages. Some employers fail to distribute the handbook to all employees and/or maintain signed acknowledgments. Some mistakenly assume that alone sending it by email to all employees or posting it in the employees’ common area is sufficient. It is not. Updates and future editions of the handbook should be properly distributed and acknowledged as well. Employers should give employees sufficient notice before making any changes to compensation or benefit issues.
As you can see, employee handbooks should be tailored to your business. You should ask yourself – what is the company culture you want to project and customize your policies to reflect that. If you would discuss creating an employee handbook or making changes to an existing one, please contact our Award Winning New York Employment Law Attorney for a confidential consultation.
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Disclaimer: Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced attorney in your state or jurisdiction. From time to time, a blog post may discuss a legal case – please note that the post may not contain the most to update information on the case as developments may have occurred after it was created.