July 20, 2018
A. Introductory Comments
Maryland law does not require an employer to draft or maintain an employee handbook. But by now, it is quite clear to most sophisticated employers that policies should be in place which can be clearly known and understood by all - from the lowest level employee to the supervisor or manager responsible for making decisions regarding the employment relationship.
The general desirability of maintaining sound employment practices and policies has created a strong incentive for employers - large and small - to aggregate and maintain these practices and policies into a centralized handbook. For instance, an employer’s written published policy that clearly states the accrual rate of vacation avoids the misunderstanding that occurs when a female employee with six months of service is denied a vacation while a male employee with two years of service is given four weeks. Without proper policies in place, employees may believe that their employer’s decision, which may or may not be on an ad-hoc basis, is discriminatory. When employees feel as if discrimination is the real reason for the employer’s differing treatment toward them, the employer is exposed to claims of illegal discrimination. This may lead to charges being filed with local, state, and/or national agencies responsible for enforcing civil rights laws in the workplace. The charge itself may lead to a lawsuit. In short, by properly drafting your policies, you thereby create a roadmap for which you can manage your employees, while your employees have an understanding and expectations as to their rights and responsibilities.
But simply reducing your policies into writing may not be adequate to insulate the employer from legal claims, either because the policies are in-artfully drafted (thereby lending themselves to differing interpretations), or the drafting and design of the employee handbook may itself legally alter the general nature of the employment relationship in Maryland. The general presumption in Maryland is that employment is “at-will.” By way of further explanation, “employment at-will” describes a relationship in which the employee can quit at anytime, and the employer retains a similar right to terminate the relationship at any time, so long as the real reason for employer’s termination is not discriminatory, illegal, or otherwise violates a clear public policy. But this presumption may be rebutted, thereby creating an express or implied contract with your employees. Employees who cannot point to any illegal criteria as the basis for their termination will often try (at least) to allege that the employee handbook drafted by the employer created an express or implied contract, which the employer breached by firing the employee. In other words, the employee handbook may be used in certain circumstances by employees to attempt to overcome the rule of at-will employment. Thus, an employer can often feel - when it comes to publishing their workplace policies - that they are “damned if they do, and damned if they don’t.” On the one hand, the employee handbook can serve as the basis for a breach of contract claim. On the other hand, failure to maintain a handbook can lead to charges of disparate treatment.
It is therefore the purpose of this seminar to first teach employers how to describe these policies in a straightforward manner in which the employer disclaims any contractual purpose or intent and maintains the rule of “at-will” employment. The second purpose is to review popular policies contained in the employee handbook, which may have legal implications.
In the first part of this writing, we will briefly address whether an employee handbook makes sense, given its relative advantages and disadvantages. We will also cover the basic provisions of a handbook, and explain the basic guidelines for drafting a handbook. This includes tips on drafting in plain English, an explanation of the basic objectives in drafting an employee handbook, and a summary of potential pitfalls.
Finally, we discuss some of the issues an employer may face if it intends to draft an “electronic employee handbook.” The second substantive section of this writing involves basic provisions of an employee handbook, including policies that are so commonplace, and are so legally important, that they could be described as virtually required in any employee handbook.
For instance, we describe in greater detail the disclaimers that are necessary to avoid claims that the employee handbook is an express or implied contract. Second, we discuss the need and desirability of maintaining an Equal Employment Opportunity (EEO) policy, and policies that prohibit harassment on the basis of a protected characteristic. Third, we discuss the impact of various Federal labor and employment laws upon an employer, such as the Family and Medical Leave Act, and what affect these laws may have upon your operation and your employee handbook. Fourth, we review termination guidelines, including grievance procedures, severances and references. Finally, we discuss the need to obtain an employee’s written acknowledgment of receipt of the employee handbook, and their agreement to conduct themselves in accord with the employee handbook.
The third substantive section of this writing is devoted to provisions related to wages, hours and leave. We discuss policies concerning overtime eligibility, paychecks, hours and leave, such as vacation, sick time, bereavement, holidays, jury duty, military and leaves of absence. The fourth substantive section of this writing addresses compliance with the National Labor Relations Act (“NLRA”), including an overview of the relevant laws, the newest social media issues, anti-solicitation/distribution policies, confidentiality provisions, employee investigations, at will employment and arbitration provisions. The fifth substantive section addresses policies which may be of particular interest to employers. In this respect, we discuss the legal implications to maintaining these policies, along with providing drafting examples which you may use in formulating your own employee handbook. Some of these policies include:
1. Drug and Alcohol
3. Computer/Telephone Use
4. Genetic Information Nondiscrimination Act (GINA)
5. Criminal Background Checks
The sixth and final substantive section of this writing discusses practical tips regarding how to revise your employee handbook, and how to enforce the revisions.
Howard B. Hoffman, Esq.
Attorney at Law
Andrew M. Dansicker, Esq.
Law Office of Andrew M. Dansicker, LLC
Hunt Valley, Maryland
Bryan M. O’Keefe, Esq.
Shawe Rosenthal LLP