Developing a new employee handbook (part 2)
Obtaining a legal review, and communicating new and revised policies
May 16, 2017
One of the most important issues when creating or revising an employee handbook is legal compliance
By Brian Kreissl
Continuing on with last week’s theme of developing or revising an employee handbook, the following are some additional tips and considerations that should be looked at when putting together a policy manual for your organization.
Obtaining a legal review
One of the most important issues when creating or revising an employee handbook is legal compliance. It is of paramount importance to ensure the handbook complies with the law in each of the jurisdictions within which the organization operates.
Especially in this day and age when employees know their rights and may even resort to class-action lawsuits against their employers, policy documents must comply with the law. One concern that is of particular importance when drafting the handbook is the issue of constructive dismissal.
Constructive dismissal applies whenever an employer makes a unilateral change to a fundamental term of the employment contract. Everyone has an employment contract and the contract need not be all that formal or in writing. An employee handbook may be found to have been incorporated into an individual’s employment contract.
There is a possibility that adding or significantly changing a policy in an employee handbook could amount to constructive dismissal. Of course, the change has to be fundamental in order to count as constructive dismissal, and there are ways to avoid constructive dismissal. These include having a clause in a written employment contract stating the employer reserves the right to alter employment-related programs, benefits and perks, and providing long advance written notice of any change to a fundamental term of employment.
What amounts to constructive dismissal will vary depending on the situation and likely the employee in question. Therefore, it is definitely a good idea to obtain legal advice from a qualified employment lawyer before communicating the handbook to employees.
However, constructive dismissal is far from the only legal concern when developing an employee handbook. Other potential concerns include language that is too ambiguous relating to employee discipline, missing policies that are required by law and information about HR programs that falls afoul of the governing legislation and case law.
Having the handbook reviewed by an employment lawyer will likely uncover these types of potential issues and problems. It may even be a good idea to have the policy manual reviewed by an employment lawyer in each of the jurisdictions in question.
Communicating policies to employees and dealing with updates and enhancements
Another important concern relates to how the organization communicates a new or updated employee handbook to employees. How this works depends partially on the format of the employee handbook.
For example, an online handbook posted on the HR Intranet can be changed fairly easily. However, it is important to communicate the fact that the change has been made, most likely via email.
If the handbook is professionally published in hard copy format, for example as a perfect bound book, the entire handbook may need to be reprinted and replaced. On the other hand, having a looseleaf handbook facilitates the filing of a few replacement pages when changes are made. In such a case, it would be necessary to provide detailed filing instructions to employees on how to incorporate additions and changes.
When receiving a new or revised handbook, employees should be required to sign off on a document stating they have read, understood and agree to be bound by the employee handbook. Refusal to sign the acknowledgement should be documented in the employee’s personnel file.
It may be necessary to add or revise individual policies on an interim basis before publishing a new edition of the employee handbook. This should be done via e-mail with an explanation that the new version of the policy (if applicable) will prevail.
Employee handbook resources
Developing an employee handbook can be a daunting task. While customization is always required, making use of templates and instructional information can help HR practitioners develop handbooks that are well-written, legally compliant and reflect best practices.
Thomson Reuters has several resources that can help including Powerful Employment Policies, by Lauren Bernardi, and Develop Your Own Employee Handbook, both of which can help readers develop a complete employee handbook, particularly for smaller organizations. In addition, Best Practices: Employment Policies That Work is a comprehensive library of employment policies which might be more suitable for larger employers looking for a greater degree of customization.
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Brian Kreissl is the product development manager for Thomson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions.