EMPLOYEE HANDBOOK BLOG

EMPLOYEE HANDBOOKS: WHAT TYPES OF HANDBOOK POLICIES ARE REQUIRED OR ADVISABLE FOR MASSACHUSETTS EMPLOYERS?

Here are examples of some of the employee handbook policies which are either legally required, or advisable, for a Massachusetts employer.

  1. The regulations relating to the federal Family and Medical Leave Act (which applies to most employers of 50 or more employees) require that information concerning employee rights and responsibilities under the FMLA be included in an employee handbook.

  2. It is very advisable for an employer covered by the Fair Labor Standards Act (FLSA) to have a written policy which prohibits the taking of certain types of deductions from the salaries of workers who must be paid on a “salary basis” to be classified as exempt from overtime pay requirements. Certain types of deductions taken from the salaries of such employees, such as deducting for taking half a day off for personal reasons, are considered by the Department of Labor as evidence that the employee is not actually an exempt employee, but rather an hourly employee who is entitled to overtime pay. Such a determination could result in that employee and other similarly situated employees being awarded two to three years of back overtime pay. The FLSA regulations, however, provide a safe harbor if an employer has a clearly communicated policy prohibiting the types of deductions which jeopardize exempt status. The policy should include an employee complaint procedure, and state that an affected employee will be promptly reimbursed if such an incorrect deduction is brought to the employer’s attention.
     
  3. Although it is not specifically required that an anti-sexual harassment policy be included in an employee handbook, Massachusetts employers of six or more employees are required to issue a written sexual harassment policy, and distribute it to employees upon hire, and thereafter, once a year. If a sexual harassment claim is brought against an employer, it may be helpful to show that the employer took steps to try to prevent sexual harassment from occurring, and provided assurance that employees could report instances of sexual harassment without fear of retaliation. It is therefore advisable to place a sexual harassment policy in an employee handbook. Distributing such a policy also makes it less likely that your employees will engage in unlawful sexual harassment. Your policy should also prohibit harassment on the basis of other legally protected categories, such as sexual orientation, race, religion and so on.
     
  4. If you are subject to the Drug-Free Workplace Act (which applies to certain federal contractors and federal fund recipients), you are required to distribute anti-drug use policies to your employees. For example, covered employers are required to prohibit the unlawful manufacture, distribution, dispensation, possession or use of controlled substances, and specify actions to be taken against violators. It would be advisable to place such a policy in an employee handbook.
     
  5. It is usually wise to include a policy prohibiting hourly workers from working overtime without specific authorization from their supervisors. It is also usually advisable to specify that “off the clock” work is specifically prohibited. If an employer knows or should know that an hourly employee is working overtime, the employer is responsible to provide overtime pay for all hours worked in excess of 40 per week. Sometimes an employee works extra time without the employer knowing it, and then later brings a claim for back overtime pay. Having a strongly worded policy that prohibits any unauthorized overtime may help the employer avoid or defend against such claims.
     
  6. It is generally advisable to have an internet/email communications devices policy. Among other things, such a policy should expressly state that company electronic transmissions, and computer stored communications are company property and may be monitored by the company at any time. The policy should emphasize that employees should have no expectation of privacy as to these communications and devices. Having such a policy may protect the employer from a breach of privacy claim if it reviews employee email or computer usage. The policy should also specify whether personal use is entirely prohibited, or whether some types of personal use are allowed. Reviewing employee emails may be necessary for many reasons, including if the employee is suspected of misconduct. It may also be advisable to prohibit obscene and unlawfully harassing communications, and unauthorized transmissions of copyrighted materials or the employer’s trade secrets and confidential information.
     
  7. Almost every employer should have a policy describing the employer’s adherence to anti-discrimination laws. Most employers should also have a policy stating that it will provide reasonable accommodations to employees who have conditions that constitute disabilities under applicable disability discrimination laws.
     
  8. It may be advisable to have a policy prohibiting possession or use of drugs and alcohol in the workplace, as well as the conducting of company business while under the influence of drugs or alcohol. Having such a policy may help prevent employees from using drugs or alcohol in the workplace. Moreover, such a policy may help the employer defend against a claim brought by an employee who claims to be a protected disabled person on the basis of substance addiction. Employees sometimes claim that they should not have been fired for reporting to work under the influence of alcohol because, as a disabled person, they have a right to be accommodated by being given an opportunity for treatment. Employers in such situations have been successful, however, in arguing that the employee was terminated not because he had the disability of alcoholism, but because he violated a clear uniformly enforced rule prohibiting employees from reporting to work under the influence.
     
  9. It may be advisable to include a policy prohibiting workplace violence and possession of weapons. Doing so may help prevent a violent situation from occurring in the workplace, and may also help protect the employer from a claim that it did not do enough to prevent such a situation from occurring.
     
  10. Most employers should seriously consider having an employee handbook policy setting forth clear rules for engaging in company related social networking, whether on the job or in off duty hours.
     
OTHER POLICIES EMPLOYERS MAY WISH TO INCLUDE IN EMPLOYEE HANDBOOKS
  1. Employers may wish to include policies relating to the various types of leaves of absence that are available, so that supervisors know the often complicated rules relating to the different kinds of leave, and employees know what the eligibility requirements for such leaves are. Among the types of leaves that employers may wish to cover, if applicable to them, would be Family and Medical Leave Act leave, Massachusetts "Sick Time Law" leave, Small Necessities leave, Massachusetts Parental Leave Act leave, bereavement leave, disability leave, jury duty and military leave.
     
  2. Many employers also define the various categories of employees (such as regular, part time, temporary, exempt and hourly) and describe the various types of benefits which are available to various categories of employees.
     
  3. It is often advisable to have a policy requiring dependable attendance and punctuality. It is also often advisable to include rules for reporting employee absences. It is often best to require employees to report an absence to a supervisor, particularly if the employer is subject to the Family and Medical Leave Act.
     
  4. Many employers also include a policy reflecting that a failure to report to work without providing notice (absent circumstances when it was impossible to give notice) will be deemed a voluntarily resignation.
     
  5. Other policies that most employers include in employee handbooks are lists of offenses that may lead to discipline or discharge. Such policies must be very carefully drafted, however, to avoid the inadvertent creation of enforceable contract rights.
     





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Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com