The Golden Rule about Promises in an Employee Handbook...When you consider what to promise your employees, hold back on any and all promises unless you really feel a certain promise is absolutely essential and you are 100% certain you can always deliver on the promise. If you can't, delete it from your Employee Handbook unless it is required by law.
FLEXIBILITY: An employee handbook should give the company maximum discretion and flexibility in managing and operating its business. Employers should avoid using any language that may come across as a promise to employees. If an employee feels that the employer has not lived up to a promise, the employee may try to use this language either as a basis for a breach of contract suit or as evidence in a discrimination suit (that the employee was treated differently than others would be treated).
What are some of the most common danger spots in employee handbooks? Just to name a few...
- Implied or expressed promises of advancement;
- Promises that employee wages will "be competitive";
- Rigid performance review policies;
- Elaborate systems for progressive discipline;
- Specific criteria for promotion;
- Pledges to hire from within.
Consider the following examples:
Performance Reviews: Don't make unqualified promises to review employees annually, for example. If you "slip up" as to any one employee, and you decide to terminate that employee, their attorney can rightfully point to promises made in the handbook regarding "Performance Appraisals" (and talk about how their client was never given a fair chance, due process, etc. according to your own Handbook).
You want "wiggle room" so that if you do slip up and forget to grant a particular employee a performance review, you will not be "nailed to the wall" because of it. Therefore, use words like "usually" and "may."
Never say "we will review you annually." Instead, do not set a concrete timetable in the employee handbook, and just say nothing about performance reviews. Do as you wish-what suits your business operations.
Disciplinary Procedures: Be sure that the disciplinary procedures are described as mere guidelines and that appropriate discipline depends, of course, on the particular facts and circumstances of any particular disciplinary case (and that the employer retains the right to use its discretion on a case-by-case basis as to any disciplinary issues).
State that any list of punishable offenses that might merit discipline and/or discharge is not an all-inclusive list, and that the company reserves the absolute right to discipline for offenses not listed in the handbook. Sample language follows:
The above list is intended for general guidance of the employee and, of course, is not meant to be exhaustive. It covers only typical cases, which can result in disciplinary action ranging from verbal warnings to discharge at the discretion of the Company. It is important to note that disciplinary action is not to be construed as limited by or restricted to only the specific instances listed above.
Do not limit the company's right to discharge for any reason. A non-union company should avoid putting in the employee handbook phrases such as "good cause," "good faith," or "just cause" because these would be limitations on the company's legal right to discharge as the company deems appropriate.
CONCLUSION: If you are fortunate enough to enjoy a non-union work environment, cherish the flexibility that you have as a non-union employer. Do not erode that flexibility with unnecessary promises!
For assistance with employee handbooks, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at [email protected].