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Does Your Employee Handbook Contain Any of These Illegal Policies?

Does Your Employee Handbook Contain Any of These Illegal Policies?
CEDR

Your practice’s employee handbook is a powerful document.

Well-written handbooks lay the groundwork for new hires when it comes to their expectations of the job, they provide context for understanding your company’s unique office culture, and they can even offer valuable legal protections for your practice.

Poorly written handbooks, on the other hand, are powerful for a different reason. If your handbook is written by anyone other than an HR and employment law expert, if it is borrowed from another business, or if it is built from a handbook template, it is likely leaving your practice vulnerable to employment litigation.

Rather than offering legal protection for your practice, poorly written handbooks are powerful when used as evidence against your business in a court of law. This is especially true if your handbook contains ill-advised language or policies that are outright illegal.

When Laws Don’t Apply to Your Practice

It’s not uncommon for haphazardly composed handbooks -- or those that were written by anyone other than an employment law expert -- to contain language that actually increases a business’ liability.

For instance, the requirements of the Family and Medical Leave Act apply only to businesses with fifty or more employees, but smaller businesses can effectively adopt the requirements of that piece of legislation -- thus placing additional unnecessary restrictions on themselves -- by referring to it in their employee handbooks.

Further, some behaviors and procedures forbidden by many handbooks are actually protected by employment laws, including certain types of employee communication and specific wage and hour protocols.

What follows are some of the most common illegal policies that we see in DIY, self-made, and discount dental and medical employee handbooks, as outlined in our free online Employee Handbook Guide.

Common Illegal Employee Handbook Policies

If your handbook contains any of the following policies, it is actually putting your practice at risk for potential litigation (if any of these apply to your practice, sign up for a free employee handbook evaluation from the experts at CEDR HR Solutions to discuss a plan for taking corrective action).

“Don’t say anything negative about the business on social media.”

Under the National Labor Relations Act (NLRA), employees’ right to unionize is protected, and this can include their right to talk about issues facing them at work on whichever platform they choose.

“Discussing salaries with other employees is prohibited.”

This is a policy we see in many DIY employee handbooks, though it goes directly against the NLRA. Salary discussions are protected speech for a number of reasons and forbidding them outright could make your practice vulnerable to litigation.

“All bonuses are paid at the owner’s discretion.”

Though many employers are under the impression that including such a policy in their employee handbook will prevent them from having to factor bonuses into overtime calculations, this is incorrect. Calling a production-based bonus “discretionary” does not make it so, but it could cause your business’ overtime policy to be viewed as in violation of the Fair Labor Standards Act (FLSA).

“Employees will be clocked out automatically for mandatory breaks.”

Your non-exempt employees have to be paid for the time they spend working. Clocking them out automatically for breaks whether or not the employee is actually on a break is therefore in violation of the FLSA and could lead to costly legal claims related to the payment of back wages.

“Unapproved overtime will not be paid.”

Whether or not you have approved overtime hours, hours worked in excess of forty in a week (or 8 in a day in California) MUST be compensated with at least 1.5-times an employee’s regular rate of pay. Any effort to sidestep that requirement is a violation of the FLSA.

“Pregnant employees must (fill in the blank)…”

Under the Pregnancy Discrimination Act, you MAY NOT force an employee to tell you they are pregnant or are trying to become pregnant, nor can you forcibly reassign them to duties you think would be better suited for pregnant employees, even if your intentions are to help or provide a more suitable set of circumstances for that employee. For more on the laws governing the treatment of pregnant employees, watch our free on-demand webinar on workplace maternity.

Discriminatory Dress Codes

Having a dress code or set of protocols that is more restrictive to one gender or protected class can be construed as discrimination. In California and New York City, for instance, dress codes that single out specific hairstyles are now illegal as such policies often appear to single out natural African American hairstyles (Afros, braids, cornrows, etc.) more so than any other style or type of hair.

Policies Can Cut Both Ways

In no way is this post a complete catalog of what can go wrong when drafting an employee handbook. In fact, the illegal policies presented here are just the tip of the legal iceberg. And, unfortunately, the vast majority of practice owners and managers we speak with don’t realize just how vulnerable their practices are.

At CEDR, we’ve actually identified more than 150 points of interest related to legal compliance and practice protection that we address in every single handbook we create for our members.

You can get an idea of what goes into that process by checking out The CEDR Guide to Employee Handbooks, or by speaking with one of our experts about your practice’s HR strategy.