A carefully drafted employee handbook may shield an employer from potential lawsuits from applicants, and current and former employees. However, when an employer does not think carefully about its policies, its handbook may become the source of liability, rather than a defense to it. This chapter provides tips on how to draft and revise an employee handbook to comply with Massachusetts and federal law.
When an employer begins to develop its policies, it should consider two issues:
Before an employer begins to draft or revise its manual, it should determine the scope and nature of its policies.
An employer should first consider how many policies to include in its manual, and the level of detail it wants to communicate to employees. Some employers draft manuals that contain the bare minimum of policies that are required by law. Such manuals provide the employer with limited protection in the event of a lawsuit and are of little use to the company’s employees on a day-to-day basis. Conversely, some employers develop lengthy manuals that contain policies on every conceivable personnel issue. Although a detailed manual is useful for employees, this approach also has the drawbacks. On a practical level, an employer may have difficulty keeping its policies current. Moreover, disgruntled employees may use the manual as evidence that the company failed to follow its own policies. Finally, when a policy is extremely detailed, a court will more likely find that it establishes an employment contract with the employee.
Most employers fall somewhere in the middle of these two extremes. In deciding which type of manual is suitable for the company, the employer should consult with management to determine what level of detail is appropriate for its employees. The employer may also want to consider whether lower-level managers have effectively enforced company policies in the past.
To determine the proper level of details for its policies, the employer should ask itself these questions:
Federal employment laws only apply to companies that have a certain number of employees. For instance, the Family and Medical Leave Act (FMLA) applies only to employers that employ 50 or more employees each working day for 20 or more calendar workweeks in the current or preceding calendar year. Therefore, to determine which laws apply to the company, the employer must first determine the number of employees in the company (currently, or in the near future) within a particular state or location. In addition, if the laws of the state in which the employer operates are more restrictive than the federal laws or vary in other ways, the employer must comply with the state laws as well. For an explanation of the thresholds for application of state and federal laws, see Compliance thresholds.
If an employer intends to apply the manual to employees in multiple states, it must decide the extent to which the manual will address the specific laws of each state. Most employers take one of three approaches:
An employer should consider how to incorporate its corporate culture into the manual. A company that employs a formal approach tends to use the terms “employees” and “the company.” Conversely, a company with a more relaxed culture uses pronouns such as “you” and “we.” The education level of the workforce may influence the language and terms that an employer uses in a manual.
Before it begins to draft a manual, the employer should determine who will be reading it. Will both managers and their subordinates be subject to the manual? Will both unionized and nonunionized employees be subject to the manual? Which subsidiaries, affiliates, and divisions will be subject to the manual?
If the employer has several different facilities with varying workplace requirements (for instance, if it has a factory, a corporate office, and a retail branch), the employer may want to develop separate manuals for the various locations and/or operations. However, the employer should also consider whether the use of separate manuals will be more difficult to administer (especially if it has a centralized Human Resources organization) or whether it would create perceptions of inequality within the company.
Very few state or federal employment laws require the inclusion of specific language in an employee manual. However, recent court decisions have indicated that employers would be prudent to include certain provisions.
At the beginning of the manual, most employers include an introductory statement that welcomes employees and explains the purpose and scope of the manual. It is important that this introduction contain a clear, bold-font statement that the employee manual does not create a contract of employment between the employer and employee, and that nothing in the employee manual alters the at-will status of the company’s employees. The employer should emphasize this disclaimer by using capital letters, a larger font, or by placing it on separate page or in a text box. This disclaimer is important because Massachusetts courts have found that an employee manual may create binding terms of employment for the employee and the employer.
Specifically, in order to determine whether an employee manual forms an enforceable contract, Massachusetts courts look at whether the employee would reasonably understand that the written assurances contained in the manual are statements by which the employer would be bound. This analysis typically involves a determination of whether it is fair to enforce the terms of the manual.
Although no one factor is determinative, the court may consider the following factors in its analysis:
An introductory statement should also explain that the employee manual contains only basic guidelines for employee conduct and benefits. Moreover, the employer should state that the policies in the manual will be interpreted by the company in its sole discretion and that the company retains the right to apply its policies with flexibility.
Finally, it is a good idea to include language in the introduction stating that the manual supersedes and replaces all prior written and unwritten policies of the company. This language is important because some courts have held that when a company changes policies and fails to make it clear to employees that its policies have changed, the employer may be bound by its previous policies.
Another important element of any employee manual is a statement that the employer is committed to making employment decisions without regard to any protected classification, such as:
A Massachusetts employer must include all of these classifications in its policy.
Many employers choose to combine the equal employment opportunity policy with a policy prohibiting harassment and discrimination in the workplace. Supreme Court precedent has made it a requirement for an employer to develop and distribute a strong and comprehensive harassment policy to its employees. A complete harassment and discrimination policy includes:
One common mistake that employers make is to draft a harassment policy that only prohibits sexual harassment. Such an approach is dangerous because courts have recognized harassment claims based upon other protected classifications such as race, disability, age, or sexual orientation.
Another common mistake that employers make is to promise that complaints of harassment or discrimination will be kept confidential. Total confidentiality may not be possible because the company may need to disclose the nature of the allegations (or the identity of the alleged victim) to the accused or to witnesses in order to investigate the allegations. For this reason, the policy should state that complaints will be kept confidential “to the extent possible.”
Finally, a harassment and discrimination policy should give employees at least two different avenues to report complaints of harassment or discrimination. A policy that requires employees to report all complaints of harassment or discrimination to an immediate supervisor is ineffective if the immediate supervisor is the source of the complaint. A better approach is to ask the employee to report complaints to human resources, to a supervisor, or to another member of the senior management team. Some companies work with an outside third-party to give employees the option of reporting complaints anonymously (such as through a toll-free hotline). This approach is helpful to companies that have operations in several states.
Although a well-drafted employee manual describes the at-will employment status in its introduction, an employer should also include a separate “employment at-will” policy as well. This policy should state that either the company or the employee may terminate the employment relationship for any reason or for no reason. It should also state that the manual will not change an employee’s at-will status and that the employee’s at-will status may not be modified by any oral or written representations other than a written contract of employment signed by an appropriate officer of the company and the employee.
The Family and Medical Leave Act (FMLA) is the only federal employment law that requires employers to include a specific policy in its employee manual. The Department of Labor issued regulations stating that an employer is not required to have an employee manual, but if it does have such a manual, it must include the employer’s policy on FMLA leave. Of course, this requirement only applies to employers who are subject to the FMLA. To qualify as an employer for purposes of the FMLA, a company must have 50 or more employees for 20 or more workweeks in the current or preceding calendar year.
While the FMLA does not detail the specific language that an employer should use in its FMLA policy, a well-drafted policy contains an explanation of the following issues:
Federal regulations that became effective on January 16, 2009, clarify employer notice requirements. Specifically, an employer that uses an employee manual must include information from a notice prepared by the DOL within the manual. If an employer does not use an employee manual, the employer should distribute the DOL notice to new employees upon hire. The DOL notice may be found at:
For more information, see Family and medical leave.
No law requires that an employee manual contain a list of prohibited conduct, but many employers develop manuals for this reason. A standards of conduct policy puts employees on notice of the types of conduct they may not partake in at work. A typical policy lists the common types of employee misconduct that result in discipline. The employer should emphasize in this policy that its examples of misconduct do not comprise an all-inclusive list. The policy should also state that misconduct will result in discipline, up to and including termination.
The handbook should include a section on the process the company will use to discipline its employees. See Discipline, for a detailed discussion of the advantages and disadvantages of progressive versus flexible discipline policies.
Employers that want to preserve their employees’ at-will status should not state that employees may be terminated only for “just cause,” or include other limitations. If the employer uses such language, it may need to show that the employee engaged in some heightened standard of misconduct in order to justify the termination. Similarly, the handbook should not contain a statement that a “warning” will always be given to an employee before being discharged. Rather, the company should explicitly maintain the discretion to terminate employees immediately and without warning. Further, the termination policy should include a reminder that the employment is at-will and that the employer can discharge an employee at any time for any lawful reason.
As of July 1, 2015, all Massachusetts employers must provide their employees with sick leave; and those with 11 or more employees must provide them with paid sick leave. For further details concerning the paid sick leave requirements, see the Sick Leave Policy section in Other types of leave.
The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and state law govern the amount of leave an employee is entitled to take for military purposes. A company’s military leave policy what types of military leave are permitted and should explain what an employee must do to exercise his or her reemployment rights under the statute. In addition, the policy should state whether the employer will continue to pay an employee during the military leave.
In Massachusetts, an employee who is a member of the Armed Forces reserves may take up to 17 days in any calendar year for military training. In addition, the employee is protected from discrimination based on his or her veteran’s status. However, the employee must notify his or her employer of the dates of departure and return from leave. When an employee returns from leave, she or he must be restored to the same position, or to a similar position with the same pay, status, and seniority. The leave may be paid or unpaid at the employer’s discretion. An employer may not change the employee’s vacation, sick leave, bonus, advancement, or any other employment terms as a result of the leave.
Federal law requires that an employee who performs military service of any nature may retain reemployment rights for up to five years. In addition, the five-year period may be extended when the military service includes training requirements or involuntary active duty. The employee must be reemployed in the same position or, if the service was for more than 90 days, a position with similar pay, status, and seniority. Moreover, a returning veteran is entitled to the seniority and benefits determined by the seniority that she or he had at the beginning of the military leave, plus any additional seniority and benefits that would have been attained had the veteran remained continuously employed. An employer may not terminate the employment of a reinstated employee, except for cause, for six months if the military service was for more than 30 days or for one year if service was for more than 180 days.
Employers should be aware that changes to the FMLA that became effective in January 2009 greatly expanded military leave. For more information, see Military leave.
The handbook should reserve to the employer the right to search and survey the premises of the company. The employer should also reserve the right to monitor emails, Internet usage, voicemail, and all computer systems belonging to the company. In addition, employers should consider social networking policies that set out limitations for employees when mentioning their employer or co-workers in a blog or other social networking site with respect to certain specific areas on private blogs. Social media policies are highly regulated by the National Labor Relations Board (NLRB); therefore, employers must be very careful not to draft a policy that restricts social media use too broadly. The policy should restrict employees from discussing confidential information, or trade secret information. In addition, under recent interpretations of social media policies made by the NLRB, employee handbooks must be careful not to restrict employees from discussing (even negatively) the company, their co-workers, or the company’s competitors online.
Instant messaging or texting policies are also important if an employer wishes to limit the time that employees spend texting while at work, or the content of text messages (such as prohibiting sexual harassment through text messages). See Privacy rights and Social media.
A comprehensive social networking policy will prohibit an employee from maintaining or accessing a social networking page or blog while at work, and will warn employees that information posted on blogs or social networking sites using company equipment is not private.
The NLRB has been very active in the last several years with respect to charges against employers for overbroad social networking policies that limit or chill the rights of employees to engage in concerted activity under Section 7 of the NLRA. See Social media, for a more detailed discussion on this issue. Employers must be careful in drafting social networking policies not to prohibit, chill or limit an employee from engaging in discussions about the terms or conditions of work. There is no one-size-fits-all social networking policy, and employers that wish to implement a social networking policy should consider the reasons that they require such a policy. In general, however, when drafting a social networking policy employers should:
One of the most important parts of an employee manual is the acknowledgment form. This form is usually included at the end of the manual and requires that the employee read the manual and sign a statement acknowledging his or her review. A well-drafted acknowledgment form contains the same disclaimers found in the introduction that the manual does not create an employment contract or any other type of contract. The form should also reiterate that the policies may change from time to time and will be interpreted by the company in its sole discretion. The employer should retain a copy of the form in the employee’s personnel record.
An employer may choose to include a mandatory arbitration provision in its acknowledgment form to require employees to resolve all employment-related disputes with the company through arbitration, rather than in a lawsuit. The company should carefully consider the language in such a provision. A Massachusetts federal court has held that when a company included such a provision in its manual, the company entered into an implied contract to arbitrate a dispute with one of its employees regarding his termination. The court noted that the company had expected its employees to comply with other portions of the manual, therefore, it could not exempt itself from enforcement of the arbitration provision.
If an employer knows that it wants to arbitrate all employment-related disputes, it should make the provision clear and it should set it apart from other provisions. Some courts have found that an arbitration provision is not effective if it is included in a general acknowledgment form.
Most employers take one of two approaches to attendance and punctuality in an employee manual:
The more general policy carries with it a risk that different managers may interpret the standard on a case-by-case basis, leading to different (and possibly discriminatory) treatment of employees.
Most attendance policies include a statement that employees are expected to be present and on-time. Such policies should define “excused” and “unexcused” absences, and should stress that failure to give proper notice of an absence may result in discipline. An employer should also provide guidelines concerning the amount of notice an employee must give to the company before an absence. Finally, many attendance policies include a statement that the company will presume that an employee has resigned if he or she fails to show up to work for a certain number of consecutive days, unless the employee has provided proper notice.
An employer should ensure that its attendance and punctuality policy is consistent with state and federal laws. Specifically, the policy should include in the list of “excused” absences any absence required or permitted under applicable leave laws. In addition, the employer should specify that an employee may be disciplined for “excessive, unexcused absences.” The omission of the word “unexcused” may support an employee claim for violation of disability or leave laws.
If the employer refers to benefits, vacation, or leave in its policies, it should define the classifications of employees who are eligible for these policies. Employees are often classified by whether they are:
An employer should avoid the term “permanent” in its description of employees because it implies that certain employees are not at-will. To avoid this implication, many employers choose to include an additional provision stating that none of its employee classifications change the at-will employment status of the employees.
An employer typically includes workplace drug and alcohol use on its list of prohibited conduct, however, an employer may also choose to have a separate policy on substance abuse.
If an employer wants to implement a substance abuse policy, it must be careful to comply with Massachusetts law.
In Massachusetts, an employer may only require drug tests of its employees under certain circumstances. Courts balance the employer’s legitimate business interest in knowing whether its employees are using drugs against the employee’s privacy interest. Under this test, the court has found that an employer may require that employees in safety-sensitive positions take a drug test.
Safety-sensitive positions are those that involve tasks that may endanger employees or the public, such as the operation of machinery, the use of sharp tools, or regular vehicle usage. Conversely, an employer may not require drug tests of employees who do not occupy safety-sensitive positions, such as employees who work exclusively in an office.
Moreover, when an employer uses a drug test, it must take precautions to ensure that the testing conditions provide privacy and produce accurate results. The employer should also provide its employees with the ability to contest the results of a drug test.
Finally, the employer should pay for the drug test.
If an employer chooses to require drug tests of employees in safety-sensitive positions, it should include an explanation of the following aspects of its policy:
Massachusetts law recognizes the rights of medical marijuana users and provides limited protections for medical marijuana users in the workplace. Specifically, the Act for the Humanitarian Medical Use of Marijuana affords medical marijuana users protections from criminal prosecution or civil penalties for using medical marijuana. The Supreme Judicial Court held in Barbuto v. Advantage Sales and Marketing, LLC, that an employee who used medical marijuana to treat her Crohn’s disease and was fired for testing positive for marijuana sufficiently alleged that she was a “qualified handicapped person” under the FEPA, and could state a claim against her employer for disability discrimination. Therefore, an employer may be required to accommodate an employee’s lawful medical marijuana use if that use is in connection with a disability and doing so does not impose an undue hardship on the employer.
One common mistake that employers make when they draft policies on employee benefit plans is to include too much information about the nature of benefits and eligibility for benefits. This tendency may create conflicts between the employee manual and the employer’s benefit plan documents or summary plan descriptions, particularly when these documents are frequently updated or modified.
An easy way for an employer to address benefits is to simply list the different types of benefit plans that the company currently offers, and to refer employees to the plan documents for more information. In addition, the employer should include a statement that the company reserves the right to modify, add to, or eliminate these benefits at any time.
An employee’s right to leave work for jury duty or subpoenaed witness duty is governed by state law. Most states prohibit an employer from disciplining an employee for fulfilling these civic duties. In Massachusetts, it is unlawful for any employer to discharge, harass, threaten or coerce an employee because the employee is absent from work to attend a judicial proceeding in response to a summons for jury duty. Furthermore, an employer may not assign an employee work assignment that would substantially interfere with the employee’s availability, effectiveness, attentiveness, or peace of mind during the jury duty.
Similarly, an employer may not penalize an employee who attends a judicial proceeding because he or she is a crime victim or subpoenaed witness attending a criminal trial. An employer who violates these laws is liable for damages to the employee and may be required to pay fines.
In addition, Massachusetts law requires that employers pay “regular employees” for the first three days of service as a grand juror or trial juror in state court. “Regular employment” includes part-time, temporary, and casual employment so long as the employee’s hours may be determined by a schedule or practice established during the three months preceding the jury duty. An employer may be excused from this requirement if it is able to show extreme financial hardship, such as where paying the employee would significantly impact the operation of the business.
An overtime policy is helpful to set clear guidelines for nonexempt employees on the procedure to obtain overtime hours. In the absence of this type of policy, individual managers tend to distribute overtime hours to employees on an ad-hoc basis, which exposes the employer to discrimination claims.
A well-drafted overtime policy explains that employees will only be paid time-and-one-half for hours that they work more than 40 hours in a workweek and should reiterate that paid time off for vacation, sick leave, or holidays does not count toward the 40 hours. Another important element of an overtime policy is a mandate that nonexempt employees must obtain permission from their supervisor before working overtime, and that they may not start work early, work through lunch, or work late without permission. The policy should also state that, occasionally, the employer may require employees to work overtime, and repeated refusals to work overtime may result in discipline.
When an employer drafts an overtime policy, it should note the wage and hour laws of the states in which employees will be working. Massachusetts law parallels federal law by requiring that employers pay nonexempt employees time-and-one-half for all hours worked more than 40 in a workweek. However, some states require overtime to be paid for hours worked more than eight in one workday or require additional pay for holidays. Massachusetts, for example, requires that nonexempt employees of some retail stores be paid time-and-one-half for hours worked on Sundays and on certain holidays. (Note: As part of the “grand bargain” bill enacted in July 2018, the retail premium pay requirement for Sundays and certain holidays is being phased out, with the applicable premium decreasing in stages each year until 2023, with no premium pay required beginning that year. The holidays still requiring premium pay are New Year's Day, Veteran's Day and Columbus Day.) In addition, some states have special overtime rules for certain industries.
The key point to remember when an employer drafts a vacation policy is that it should explain the vacation accrual process very carefully. On the one hand, employers often do not adequately explain how accrual works during the first year (or partial year) of employment. On the other hand, many employers make the mistake of drafting a complicated formula for accrual when it may be easier to include a simple chart or table that indicates the length of service and corresponding amount of vacation. The Massachusetts Attorney General’s Office has stated that vacation policies should be clear as to the exact date when vacation time accrues, how much time accrues, and whether the time expires at a certain point. In the absence of this information, an employer may be required to pay its employees for vacation time that it did not intend to grant to employees.
An employer should also consider other factors in its vacation policy, such as:
Under Massachusetts law, an employer must pay an employee for accrued but unused vacation time upon separation from employment.
An employer may choose to include a voting leave policy in its manual. In Massachusetts, employees in manufacturing, mechanical, or mercantile establishments who are eligible to vote are entitled, upon request, to leave work to vote during the two hours after the polls open in the employee’s precinct, ward, or town. Polls typically open early in the morning in Massachusetts, therefore, this law does not tend to interfere with an employer’s operations during business hours.
Some employers draft detailed workers’ compensation policies that describe all of the various types of benefits an employee may receive under the company’s workers’ compensation insurance policy and how an employee must process claims. This type of policy may encourage abuse of a company’s workers’ compensation program. A better policy is to simply remind employees to follow the company’s safety procedures and immediately report any illnesses or injuries that occur at work or during working hours.
The following policies may be useful in an employee manual. Employers should check applicable employment laws to be sure the policies comply with any Massachusetts or federal requirements in these areas.
In recent years, the National Labor Relations Board (NLRB) has aggressively redefined the landscape for employer rules contained in employee handbooks, employee policies, and employment agreements. In apparent recognition of these changes, in March 2015 the NLRB's then-General Counsel, Richard Griffin, issued a memorandum “to offer guidance on [his] views of this evolving area of labor law.”
The Memorandum sets forth examples of lawful and unlawful rules for eight categories of rules frequently at issue before the Board, and then reports on specific employer rules that were deemed lawful and unlawful by the Office of General Counsel as part of a settlement agreement. Employer rules addressed by the memorandum include rules regarding:
For each category of rules, the memorandum sets forth:
With respect to confidentiality rules, for instances, the memorandum notes that employees have a right under the NLRA “to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees, such as union representatives.” As such, a rule prohibiting employee discussions about wages, hours, or workplace complaints – or one that employees would reasonably understand to prohibit such discussions – is unlawful. Broad prohibitions on employees discussing “employee” or “personnel” information are also unlawful. However, broad prohibitions on disclosing ‘confidential’ information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, because employers have a substantial and legitimate interest in maintaining the privacy of certain business information.
The Memorandum provides the following examples of unlawful confidentiality rules:
On the other hand, the Memorandum provides the following examples of lawful confidentiality rules:
The Memorandum addresses the other categories of rules in a similar fashion. Accordingly, to the extent that an employer wishes to implement a rule or policy in one of the categories identified in the Memorandum, it should consult and carefully consider the guidance provided in the Memorandum concerning the lawfulness of such rules - although it is unclear to what extent the Trump-era NLRB will follow or enforce the Memorandum.
It is not enough for an employer to develop a comprehensive employee manual – the employer must also effectively distribute the manual to employees, and must consistently enforce it. To ensure that company managers are able to enforce the manual policies, the employer may want to have managers at each level review a draft of the manual before it is finalized. These managers may be able to guide the employer on whether the employee manual sets realistic standards, and how employees will respond to its policies.
It is vital that employers enforce the policies stated in their employee manuals (and in other documents) in the same manner with respect to all similarly situated employees. Failure to do so may expose the employer to discrimination, retaliation, and other claims by its employees. Accordingly, before taking any personnel action based on a company policy, the employer should take steps to ensure that its action is consistent with its prior personnel actions with respect to the same and similar issues.
The company should schedule a final review before it distributes its manual to employees. In addition, periodic reviews should be conducted every year or two in order to ensure that the manual reflects any changes in the law and the company’s current practices. Each time the manual or particular policies are updated, the Human Resources Department should keep file copies of the previous versions. These copies may be needed if an employee with a history of disciplinary problems disputes an earlier violation of policy. It is helpful to include information in the handbook (perhaps in a header/footer on the pages) that signifies the version and/or date of each handbook, in the event that an employee in a later dispute claims to be relying on a particular copy of the handbook that may be out of date. The acknowledgment form discussed earlier should also have information that ties it to the version of the handbook that the employee acknowledges receiving.
When an employer is ready to present the manual to employees, it should issue a company-wide announcement so that all employees are aware of the new policies. Often, the President or CEO of the company will issue a formal announcement and/or draft a welcome letter to be included with the manual. If the manual represents significant changes from the company’s previous policies, training sessions should be held for managers who will implement and enforce the policies. The Human Resources Department should also be prepared to receive questions from employees and managers during the initial weeks and months that the new manual is in effect.
As part of the onboarding process, the employer should ensure that all new employees are given a copy of the manual or, if it is distributed electronically, instructed how to access the manual electronically. The company should also ensure that all new employees execute an acknowledgment of receipt of the manual, and it should maintain that acknowledgment in the employee's personnel file.
Once the text of the employee manual has been finalized, the employer must choose how to make it accessible to employees. The manual can provided in hard copy or, in appropriate circumstances depending on the employer's workforce and system capabilities, electronically.
An employer may choose to present the handbook as a physical document. There are two principal ways to bind the manual:
A single booklet is cheaper to produce and easier to distribute. This format also makes it easier to determine which policies were in force at a particular time (if the manual is clearly marked with an effective date). Conversely, a policies and procedures manual that is comprised of removable pages is easier to update. Also, a court is less likely to find that a collection of separate policies and procedures constitute a contract.
The employer should require each employee to execute an acknowledgment form for each version of the manual (or portions of the manual) that the employee receives, including when the employee is first hired and upon distribution of any subsequent manual update.
A large number of employers are now providing employee handbooks to employees electronically, which can help reduce cost and use of paper, and may make the handbook easier to update. There are a number of considerations that an employer should keep in mind if it chooses to go “paperless” with its employee handbook.
An employer should assess its work environment to determine whether distributing an employee handbook electronically suits its business. For instance if a large majority of a workforce does not have access to computers or email (such as manufacturing, restaurant, maintenance, etc.), distributing an employee handbook electronically would make policies difficult for employees to access. This is a key consideration when determining whether to go paperless with employee handbooks and to provide them only electronically. If employees do not have their own computers, employers will need to have designated computers for employee use available in the workplace; and they will have to make sure the employees use those computers to access the handbook when each distribution occurs. Alternatively, an employer could still provide copies of the handbook in hard copy to segments of its workforce who do not have work computer or email access.
Also, as a cultural matter, employers should ask themselves, “How will my employees view the distribution of the handbook electronically? Will it be easier or more difficult for them to access and read?” If an employer feels that going paperless will be a significant transition for its workforce, it may want to consider a transition period where the employee handbook is offered both in paper form and electronically.
An employer switching to electronic distribution still must receive an acknowledgment form with appropriate disclaimers concerning the at-will nature of employment and the lack of contract formation, as discussed earlier. If an employer is going paperless, the employer can have its employees acknowledge receipt of the employee handbook in different ways.
First, the employee handbook could be distributed by email each time it is updated and when it is provided to new employees. The employer should include all of the appropriate acknowledgment-form language in disclaimers in the email and should ask that employees reply by email acknowledging that they have received and read a copy of the employee handbook. The employer could also attach an acknowledgment form to the email and ask that employees sign and return the form to the employer. Whatever method it chooses, the employer should ensure that it receives these executed acknowledgments forms from all handbook recipients and stores them in each employee’s personnel record.
Second, if the employee handbook is going to be available on a company’s intranet, the employer should create pop-up windows or screens that contain clear and conspicuous acknowledgment and disclaimer language. These windows or screens should not be able to be bypassed, for instance, by closing the window. Instead, they should require an employee to take action to electronically sign by “clicking through” each time he or she accesses the electronic handbook. The employer should work with its information technology group to preserve files containing records of all employees’ electronic accesses/signatures, by employee and date. These procedures are important because they can allow an employer to track how often an employee has accessed and/or printed a copy of the employee handbook – and the ability to do so can be helpful if the employee later alleges in a lawsuit that he or she was not familiar with a particular policy or had not previously seen a copy of the policy. Even employers who are going paperless may prefer to include a written acknowledgment form signed by the employee in the employee’s personnel file. Finally, if there is a mixed distribution in which the employer provides some employees with hard copies, it should make sure to obtain written acknowledgment forms from those employees who received a hard copy.
An electronic version of an employee handbook – particularly one posted on an intranet – has the virtue of being easily updated and of ensuring that each employee has access to up-to-date information. In the event of an employment dispute, however, it may be important to determine what version(s) of the handbook the employee had received or accessed at a particular time (which may not be the same as the version that is, at the time of the dispute, currently posted on the employer’s intranet). Therefore, every time a handbook is updated, the employer should retain archived copies of the prior versions along with a record of the dates that those handbooks were in effect. These can then be matched up with the employee acknowledgment forms, acknowledgment emails, or click through signatures to determine the version(s) the employee received or accessed.