A handbook for handbooks

Tips for ensuring employee handbooks are effective, legal and up to date
By Megan Burkett
|Canadian HR Reporter|Last Updated: 01/14/2013

There are numerous benefits to implementing an employee handbook. It’s a communication tool through which workplace rules and procedures can be set out for employees to follow, and it’s an effective way to clearly explain expectations to employees in a consistent manner. If expectations are not in writing, there is a risk some employees will not be aware of workplace rules.

An employee handbook can also provide legal protection, as the policies can be relied upon as a contractual term, with consequences for an employee failing to meet those terms.

To ensure a handbook is effective and legal, here are some tips to follow:

Ensure policies do not conflict with legislation: When preparing policies, legislation should be reviewed to confirm whether the language in the policy is in line with current legislation. Legislation varies by province and what may be required in one province may be different in another. As well, legislation is constantly changing and, as a result, certain policies within an employee handbook can become out-of-date.

It is especially important to confirm with legislation when sample policies from the Internet or other resources are relied upon. If the policies were prepared for an American company, then a number of sections would have to be changed before the policy would comply with Canadian laws.

This includes: the concept of at-will employment, which is not recognized in Canada; references to legislation from the United States; and extensive drug and alcohol testing policies that could violate human rights legislation in Canada.

Include a disclaimer: Include a general policy at the beginning of the handbook that covers how it will be enforced. In this general policy, the company should confirm its commitment to complying with applicable laws and regulations and state that, in the event any part of the handbook violates legislation, it is the legislation that will be relied upon. A company would then have some protection should policies become out-of-date. Other terms in the general policy should include that the company has the right to add to or amend the policies and it is within the company’s discretion to interpret and enforce policies.

Conflicting version: The employee handbook should be reviewed to confirm sections of one policy do not conflict with another policy. This can happen where there are different timelines or procedures that conflict from one policy to another.

Further, when a handbook is updated, all employees should be made aware of the new version. In many cases, it is newly hired employees who receive the updated copies while employees who have been at the company for many years rely on older, out-of-date versions with policies that may conflict with the newer version.

Use language that allows flexibility: Including terms such as “may” or “shall” instead of “must” allows a company some flexibility in enforcing policies. There are some situations where an employer will need to take different actions and enforce policies depending on the circumstances.

This is especially important for a discipline policy. A rigid discipline procedure may not allow a company to repeat certain steps that may be necessary in particular situations, such as a potential just-cause termination.

Include an internal complaint mechanism: If an internal complaint process is available, there is an avenue for employees to raise issues before a situation escalates. It is generally less expensive and less time-consuming to deal with issues as they arise internally instead of having to deal with a human rights tribunal or government ministry if an employee has filed a formal complaint.

In some cases, a complaint mechanism is required by law, such as the Ontario Occupational Health and Safety Act, which requires a company to implement procedures for workers to report incidents of workplace violence.

Regularly update the handbook: Companies should try to update the employee handbook on an annual basis, as new issues arise, such as social media policies. In addition, an out-of-date handbook may conflict with legislation as it changes from time to time.

Proper implementation: If a company has failed to properly implement the handbook, it may lose its ability to rely on the handbook. For instance, if a company is relying on a particular policy where there is discipline, just cause or an absenteeism issue, the employee must have been aware of the policy. This is especially the case if a formal complaint has been filed or there is a legal proceeding. If there is no evidence of an employee being made aware of the handbook or newer versions with additional policies, and an acknowledgment form was not signed, then the company cannot rely on the policies.

To implement the employee handbook, employees should be given a copy to review, given time to ask questions and should be asked to sign an acknowledgment form. The company should consider holding a meeting on the handbook to review the policies and answer questions.

With new employees, the employee handbook can be provided at the same time as an employment contract. Employees should be asked to review the handbook and sign the acknowledgment form prior to starting their new job.

If this is not possible, then any employment contract should reference the employee handbook and the requirement of the employee to agree to it as a term of employment.

Existing employees should be given advanced notice of the new employee handbook or an updated version that will be implemented. Consideration should be provided to existing employees when asked to sign a new employee handbook or a revised version if there are significant changes.

While consideration is often thought of as a monetary payment, it can include some of the benefits that are provided in the employee handbook, such as additional vacation days or sick days.

Megan Burkett is a lawyer in the human resources law department at Keyser Mason Ball in Mississauga, Ont. She can be reached at (905) 276-0420 or mburkett@kmblaw.com.

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