Top Seven Questionable Employee Handbook Provisions
1. Permanent Employment
Any reference to “permanent employment” in a handbook should be eliminated and replaced with the term “regular full-time employment.” In defining “regular full-time employment,” it is also advisable to state that an employee is hired for no definite period of time.
2. Probationary Periods and Promises of Job Security, Promotions, Etc.
The establishment of any type of probationary period can imply that once employees complete their probationary periods, they may be terminated only for just cause. Handbooks also should be reviewed to ensure that promises or representations are not made with respect to “job security” or promotional opportunities. These concepts are inconsistent with at-will employment. Accordingly, such policies are where the at-will disclaimer should be reaffirmed.
3. Provisions About an Employee’s Right to Engage in Protected, Concerted Activity
Many employers have adopted rules that violate an employee’s right to engage in protected concerted activity under the National Labor Relations Act. The existence of an unlawful handbook provision may result in an unfair labor practice charge and, if in force during a union election, may serve as the basis for overturning an employer’s election victory.
4. No Nepotism/No Spouse Rules
Anti-nepotism rules and policies on intracompany relationships can violate anti-discrimination statutes if they are not gender neutral. Such policies also may violate laws prohibiting marital status discrimination.
5. Dress Codes
Safety and health considerations can be a basis for employee dress and grooming requirements. Separate dress code policies for male and female employees should be eliminated, and policies should not discriminate against employees based on dress or appearance with religious/cultural significance. Any dress code must be enforced uniformly and without exception.
6. Off-Duty Conduct
The general rule is that an employee’s time outside of work is his own; many states have adopted statutes that prohibit employers from taking action against employees for lawful off-duty conduct (for example, smoking).
7. Resignation and Employee Notice
Employers should not require employees to provide notice prior to resignation and not penalize employees for failing to provide such notice. Some courts have interpreted these types of provisions to convert the handbook into a contract of continued employment.
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