Archive for September, 2011

Zo’s EMPLOYEE HANDBOOK PART III. EEO POLICY.

This is the first policy, required by law, that we are going to have in the Zo’s employee handbook. Well, it is not really required by the law, you can’t discriminate, but are not technically required to have to have a policy like this, but trust me, you really want to have a policy like this to provide at least some protection if you get sued. An EEO policy is one of the first things the EEOC or the MDCR (or whatever your state agency is) is going to look at if you have a charge of discrimination filed against you. That means that this particular policy is going to read a bit more like it was written by a lawyer, although I’ll try to keep it in plain English as much as I can. So here we go:

EQUAL EMPLOYMENT OPPORTUNITY

It is the policy of Zo’s that no employee or applicant for employment, will be discriminated against based upon age, race, color, creed, religion, sex, sexual orientation, national origin, disability, veteran status, or other protected class or characteristic established under applicable federal, state or local statute or ordinance.

Zo’s will not condone, permit or tolerate discrimination as described above.  Persons who engage in such discrimination will be subject to appropriate discipline up to and including termination of his/her employment.

If you feel you have been subjected to discrimination, or have witnessed any discrimination, please report it immediately to your supervisor, to HR or straight to Zo. Any complaint of alleged discrimination will be carefully investigated.  Should there be any violation of this policy, appropriate actions will be taken to correct the matter. Zo’s will not tolerate retaliation against anyone who in good faith lodges a complaint under this policy.

Now, that was not that painful, was it?  And not too lawyerly either, right? Here are a couple of things you need to know.

First, sexual orientation, which is included in the list of things we won’t discriminate against, is not a protected category under either Michigan(if you don’t live in Michigan and you are reading this, THANKS, and check your state’s laws. Several states do consider sexual orientation a protected category) or federal law. But at Zo’s we don’t care, we are going to include it anyway. Why? Because we think it is the right thing to do. Second, at Zo’s you can report a problem to your supervisor, or to HR or right to Zo.  You don’t need to allow people to report directly to the owner of the company, but like in a good harassment policy, you do need to give employees an alternative place to report. We will talk about that more in our next post, which will deal with . . . Anti-Harassment.

Zo’s EMPLOYEE HANDBOOK. . . . Part 2, The Rules: “Be Professional”

Last time we talked I gave you the intro page to my new “Zo’s Employee Handbook.” You might recall that I decided to write Zo’s Employee Handbook because when I was helping a client rewrite her company’s employee handbook she told me to write it like I was writing for my own company.

In part one of this little endeavor I gave you my introduction. Now I will admit, having gone back and read it again, that the page sounds more than a bit lawerly. But come on I am, after all, a lawyer. It is just not going to be possible for me to write something and not have some of what I learned in law school come to the surface, no matter how hard I try. Page 2 will be better, I promise.

Page 2 of my handbook is going to look like this:

THE RULES 

Here are the rules we expect you to live by here at Zo’s:

Rule 1.  Be professional.

Rule 2.  When doing your job or anything else at work, see Rule 1.

Yep. That’s it. Two rules that we expect you to follow whenever you are representing the company, dealing with a client or with each other or just doing your job. By “Be professional” we mean use that good judgment we know you have, always be honest, reliable and committed to doing your best. Be a team player and take personal responsibility for your actions. That is not always easy, but we know you can do it.

Here is the first thing you need to know about our rules. I borrowed them. Honesty, remember?  I wrote an article about the Tribune Company handbook way back in the Spring of 2008.  You can see the article here.  http://www.wnj.com/first_thing_we_do:_lets_kill_all_the_lawyers_spring_2008_hr_focus/.

Sam Zell and the Tribune company have a Rule 1 and a Rule 2 and they are very similar to mine.  I have changed them a bit, but the idea came from Mr. Zell.

The second thing you need to know is that these two simple rules cover everything you do at work. Thinking of starting a romantic relationship with a coworker? See Rule 1. Now think again. Thinking of harassing someone? Is that really professional? See Rule 1. Thinking of “fudging” an expense report? Yep. Rule 1 again. Want to exaggerate the performance of the company’s products in an Internet chat room? Rule 1 again.

In fact, I defy you to find a situation at work — your work or at Zo’s — that Rule 1 and Rule 2 don’t cover. You can’t, can you? Of course not.

You see, you may not need a list of 40 things you expect your employee not to do. And then again you may. But at Zo’s we are not going to have that list. We are going to expect our supervisors and employees to know what is right and what is wrong.

Now that means that we are going to have to pay a lot of attention to who we hire; and a lot of attention to training and retraining. And that is going to cost some money. But in the long run, it should be money well spent.

Next time we will talk about EEO policies.

How to Write an Employee Handbook . . . The Great American Novel, or Just a Short Story?

It’s funny how things seem to go in cycles. For example, as the first half of this year came to a close I found that I was spending a lot of time reviewing employee handbooks. Now that could be because a lot of clients have let their handbooks sit. After all, times have been tight and employee handbooks are not exactly a priority in hard economic times. Or it could be because things are picking up in the merger-and-acquisition area and new companies mean new employee handbooks. Or it could just be that it is time for a new handbook for some of my clients. Kind of like spring cleaning — HR Policy cleaning.

One of the advantages of reviewing and helping to revise or rewrite a lot of handbooks all at once is that I get the opportunity to compare them. Almost side by side. You probably are not surprised to learn that there are as many different kinds of employee handbooks as there are different kinds of employers. Some run 70 or 80 pages and have a rule for everything. And then there are the bare-bones handbooks that only have what the law requires . . . well, a bit more than that, but not much.

So what is the right way to go, you ask? There is no right way and no wrong way. There are some policies that you have to have, either because some specific law requires you to have them or because it is just a good idea under the law. But the simple fact is that there is no law that requires you to have an employee handbook at all.

Why then, you ask, am I writing this post?

Two reasons: One, while the law may not require an employee handbook I think every employer should have one; even small employers. It is just a good idea and might even help you if you get into legal trouble. And the second reason? Because I had a client say something intriguing while I was talking to her about revising her company’s handbook. She said, “Write it like it was the handbook for your company.” My company? I never actually thought about writing a handbook that way. Until now.

Over the next couple of posts I am going to do just that: Write an employee handbook like I was doing it for my company. We will call the company “Zo’s” because that is what people at good old WNJ call me. So now that we have created Zo’s, let’s write a handbook. And here we go:

 

ZO’S EMPLOYEE HANDBOOK

HELLO 

This employee handbook was provided to you to say hello and help answer some simple questions you might have about your employment with Zo’s. It is not supposed to cover every question you might have or every situation you might encounter at work. That’s not possible. And even if we tried to do that, the thing would be hundreds of pages long. And let’s face it, you are not going to read a handbook that long.

So we are going to try to keep it simple, and we want to start by telling you one thing this handbook is not. It is not a contract of employment. Your employment with Zo’s is at-will. That means you can leave whenever you want and for whatever reason you want. Of course, it also means that we can ask you to leave whenever we want for whatever reason we want.

Some of the provisions in this handbook are required to comply with the law.  You will be able to tell which ones because they will sound a lot more lawyerly.  Others are just things we want you to know. Please take a second to read this handbook. It won’t take you long. And welcome to Zo’s.

And that would be page one of my handbook. Why an introduction, you might ask?  True, you don’t need one, you can dive right in to the substance. But an intro gives you a chance to sort of set the stage, give a tone to the company culture.  It may be light, like mine, or more formal if that is your corporate culture.  Another thing it does is give us a chance, right up front to introduce the at-will concept.  To tell people, in a way we hope is not threatening, that we can fire them whenever we want. Over the next couple of weeks, we will talk about what I would put in the rest of “my” handbook.

IF YOU WANT YOUR EMPLOYEES TO ARBITRATE, BE SURE TO TELL THEM

I’m not sure how many of you have arbitration agreements tucked away in your employee handbooks anymore, but if you do you might want to take a look at an opinion from the 6th Circuit issued Tuesday.

In Hergenreder v. Bickford Senior Living Group, LLC, which was decided on August 30, 2011, the 6th Circuit found that a reference to an arbitration requirement contained in an employee handbook did not bind an employee who sued Bickford for violation of the Americans with Disabilities Act. The court stated: “Because there is no indication that Hergenreder was notified of the existence of the arbitration agreement, much less that she manifested an intent to agree to its terms” Ms. Hergenreder could not be held to its terms and she was allowed to sue in federal court rather than arbitrate.

When she was hired, Ms. Hergenreder was asked to sign a bunch of documents, including an acknowledgment that she had read and understood the employee handbook.  According to the court:  “The Handbook is divided into sixteen different sections, covering a wide variety of topics relevant to Hergenreder’s employment.  It begins by stating in Section I that “[i]t will acquaint you with the policies and procedures that apply to your employment,” but also that “[t]his handbook is intended as a summary only and is not a contract between Bickford Cottage and its employees.  A full copy of Bickford Cottage’s Personnel Policies is located in the Director’s office and may be viewed by any employee.”  Both parties to the suit agreed that the Handbook was not a contract of employment.

“What the parties did not agree on, however, is the significance of one sentence within Section XII, which is entitled “Employee Actions,” and which provides, in full, as follows:  “Dispute Resolution Process:  Please refer to the Eby Companies Dispute Resolution Procedure (DRP) for details.”

Bickford argued that this sentence in the handbook, which referred to a policy that was not in the handbook, compelled Ms. Hergenreder to arbitrate any employment dispute she had with Bickford, including herADAclaim.

The court agreed with Hergenreder and basically held that an agreement to arbitrate was not formed because there was neither an offer to enter into an arbitration agreement nor an acceptance of that offer.  The language in the handbook and the handbook acknowledgment simply did not, according to the court, amount to a valid contract to arbitrate.

So, what is the moral of this story?  If you want your employees to be required to arbitrate disputes, don’t bury that requirement in your employee handbook.  Instead, have a separate agreement to arbitrate and make sure the employee signs that agreement.

You can find the 6th Circuit’s full opinion at http://www.ca6.uscourts.gov/opinions.pdf/11a0247p-06.pdf