The Legal Fix | How to Make Employee Handbooks Work For You
Ohio is an at-will employment state, so you may question whether your business needs to put in the time and effort to create and maintain an employee handbook. After all, you can terminate employees for any reason, right?
Not so fast. This oversimplification may lead to costly disputes. If you craft them well, employee handbooks can provide substantial protection against employee lawsuits while giving your company broad leeway to conduct your business as you see fit.
Here’s a quick overview of why employee handbooks can benefit employers like you.
Is an employee handbook a contract?
There’s no definitive answer to this question. However, here are a few steps to ensure you’re not unwittingly creating an enforceable contract with your employee handbook:
- The handbook should explicitly state that employment is at will. This affirmation confirms your ability to terminate employment for any reason unless that reason is contrary to existing employment laws (for example non-discrimination laws, wage and overtime laws, etc.).
- The handbook should explicitly state that it does not constitute a contract. Your employees remain obligated to adhere to the policies in the employee handbook, particularly if you clearly state that failure to comply with policies constitutes cause for termination. A no-contract disclaimer helps you avoid added obligations.
- Finally, it’s best to draft policies using general and permissive language concerning the business’s obligations. For example, if there are particular benefits employees may receive at the company’s discretion, the policy should say the company “may” grant these benefits, rather than the company “will” grant them if certain conditions occur.
When you provide an employee with a handbook, it implies that the employee consents to the terms. But it’s best to play it safe and have employees acknowledge in writing that they received, read, and understand the employee handbook.
One issue facing all businesses today is whether to require employees have COVID-19 vaccines before returning to the office. More broadly, your business may be considering whether to add such policies to the employee handbook in anticipation of future events. The enforceability of these policies has already come under attack, although courts and government organizations are currently finding in favor of employers. The U.S. Department of Justice recently issued an opinion finding that mandatory vaccines policies are allowable, even if the vaccine only has an emergency use authorization (e.g., the COVID vaccines).
Forward-looking businesses may consider adding a permissive mandatory vaccine policy to the employee handbook. For example, your policy could state that in the event of epidemics, pandemics, or other large-scale health emergencies, your company may require that employees receive vaccines as a prerequisite for continued employment.
There are certain exceptions to mandatory vaccine policies that employers must allow. So, it’s best to review any proposed policies with your employment attorneys before issuing them to your employees.
Drug Testing Policies
Ohio has a strong interest in drug-free workplaces. The state has created a program providing employers with insurance premium rebates for participation. Employers must have a written drug-free workplace policy that includes testing requirements to be eligible. And they must conduct drug and alcohol testing, with the specific types of testing needed depending on the level of rebate the employer seeks.
At the basic level, employers must conduct pre-employment or new hire testing, along with reasonable suspicion, post-accident, return-to-duty, and follow-up testing for existing employees. Employers may also conduct random drug testing (up to 15% of the total annual workforce).
A few general things to remember about drug testing policies:
Suppose your business intends to conduct drug testing of any kind. In that case, it’s best to have a written policy defining the reasons and conditions for testing, as well as the specific consequences for violating the policy.
Be specific about testing procedures. The Ohio Supreme Court recently upheld an employer’s right to use monitored urine sample collection (direct observation method) expressly because employees consented to the testing method when they signed a consent form at the testing agency. Inclusion of specific testing methods in your policy—along with your workers’ signed acknowledgment of the terms in the employee handbook—will likely have a similar result if challenged.
Standard Search Policies
Unfortunately, sometimes a company needs to conduct searches for stolen company property or items that violate company policies. Private companies have a broad ability to conduct searches on their premises, including all areas and equipment used by employees (desks, lockers, computers, etc.) because the Fourth Amendment search and seizure standard does not apply to them. Certain limitations involve an employee’s reasonable expectations of privacy. For example, searches of the employee’s person are generally off-limits.
Yet a substantial gray area in between exists. This includes employees’ personal items such as purses, briefcases, or other personal gear, where a well-crafted search policy comes into play. Your employee handbook should explicitly state that employees have no expectation of privacy when they voluntarily bring personal items into the workplace.
Avoid overly broad search policies, as they run the risk of being unreasonable. Policies narrowly tailored to meet specific and legitimate company concerns, such as workplace safety or protection of confidential company information, have the best chance of surviving a challenge.
Internet and Social Media Usage Monitoring
Today, many businesses have valid concerns about reduced productivity due to employees spending on the internet and social media. Ohio has no laws prohibiting companies from remote monitoring of their employees’ internet usage. But this is again an area where a well-crafted employee handbook can prevent future disputes or at least resolve them in the employer’s favor.
Your internet usage policy should explicitly state the acceptable uses of company computer equipment. This includes express prohibitions on using company equipment (computers, phones or company-provided cell phones) for personal purposes. Your policy should also have a statement that usage of company equipment constitutes a waiver of the employee’s expectation of privacy, which may allow you to review email as well.
Review your policy with counsel to ensure that it doesn’t violate any applicable privacy laws or regulations.
Updates and Policing
To get the most benefit from your employee handbook, you must regularly update it. Outdated policies run the risk of failing to comply with new laws or regulations, potentially exposing you to liability should you decide to terminate an employee for failure to comply with a company policy.
Policies aren’t helpful if they’re not enforced and policed. Arbitrary enforcement of company policies can lead to claims of discrimination and lawsuits.
Louis J. Licata,Esq. is a managing partner. His practice focuses on employment law, litigation, and business transactions. He can be reached at email@example.com or by phone at (216) 573-6000.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.
Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A, and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.