Employers may save a buck or two by purchasing a jurisdiction-neutral employee handbook from their payroll company, but most payroll companies only provide a generic version that is not tailored to the employer’s specific needs and can cause serious issues for the employer in the long run.
Recent times alone have shown the importance of having an attorney review and update your employee handbook policies to comply with the ever changing laws.
For example, the COVID-19 pandemic alone has shown the necessity to have an attorney available to navigate the different forms of leave offered because of the pandemic. The constant changes with the New York State (NYS) travel mandate and the CDC’s ever evolving guidance forced many employers to create new policies that never before existed, including policies that comply with the NYS requirements of the very recent Health and Essential Rights Act (HERO Act). See, NYS HERO Act
Different Policies are Needed for Different Employers
State or federal law requirements involving employee handbook policies can differ based on the number of employees within the company, the type of industry, or even if there is a separate collective bargaining agreement (i.e., union employees).
For example, NYS recently legalized the recreational use of marijuana that is a hot topic in the employment realm. Employee handbook policies addressing the use of marijuana will need to be carefully updated to comply with the new laws. See, my former article on this issue here: Legalization of Recreational Marijuana Impact on Workplace
NYS also has more state specific rules involving discrimination, wrongful termination, and retaliation lawsuits. Employers and payroll companies may not know that Title VII of the Civil Rights Act of 1964 (Title VII) only applies to private employers who have 15 or more employees, or that the Family and Medical Leave Act (FMLA) only applies to employers who have 50 or more employees. Such policies may not be necessary for all NYS employee handbooks.
However, NYS Paid Sick Leave Laws apply to all employers, but the requirements differ based on the number of employees. Employers across the state had to update their employee handbook policies in 2020 to reflect the new mandatory sick leave laws, which were very hard to navigate, especially with the delayed guidance issued by the Department of Labor. See, Paid Sick Leave
A generic handbook that only addresses federal policies may not address the state specific requirements for each state employees work from, especially if the employer has locations in multiple states. Some cities or local areas may even impose more stringent obligations than others, such as New York City, where there tend to be additional laws and regulations specific only to that region.
For example, the minimum wage in New York State may differ based on the county or even the industry (i.e., the fast-food industry has a higher minimum wage) of the employer. See, DOL Update 9-22-2021
Different laws also apply to public employers versus private employers. An employment law attorney will know the differences in all the above areas, but a payroll company may not.
Legal Risks if the Employee Handbook is not Reviewed by an Attorney
Employee handbook policies oftentimes are considered contractual in nature by the courts, which causes legal risks or liability to the employer if the wrong wording or policies are included in the employee handbook.
- Policies that do not reflect the current law may cause conflicts in the workplace and potential liability.
- Poorly written, ambiguous, or vague policies can be misinterpreted and used against the employer when an employee sues the company. It is important to have well written, narrowly tailored policies that protect the employer from potential claims but also effectively instruct employees on what is expected of them.
- Oftentimes, the employee handbook is used as evidence of an implied contract and an exhibit in lawsuits. For example, if the terms of the employee handbook policies are not carefully followed, the employer risks a lawsuit for breach of contract.
- Employee conduct policies may prohibit certain activities that are addressed in confidentiality policies, employer-provided email, telephone, social media, and laptop policies, etc. Such policies need to be carefully drafted to ensure that they do not infringe on the employees’ rights to engage in protected activity.
- Policies tend to be updated or added at different times, so it is necessary to make sure that such policies are consistent with each other and do not contain any contradictory terms.
Overall, the main reason that an employer should hire an attorney to review employee handbook policies is because although the laws are constantly changing, they are more closely followed and more easily understood by an employment law attorney than a non-attorney.
This article is intended for general information and educational purposes only and should not be considered legal advice or counsel. No attorney-client relationship is created by the distribution of this article. The substance of this article is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Office of Regina Sarkis, PLLC.