Back to Basics: HR Questions

Q: Does my business really need a Policy and Procedure Manual or Employee Handbook?
A: No. Employee handbooks are not required in NJ. There are a number of policies that you must have, but in general, an Employee Handbook is only an outline of the policies that a company utilizes for its employees. The concern about Employee Handbooks is that once those policies are in writing, then a company has limited discretion in whether or not to follow them. If you do not have any written policy, you have more flexibility in the disciplinary actions you take. However, you should always be consistent in implementing disciplinary procedures for similar offenses so as not to expose the company to a lawsuit for discrimination. If you have an employee handbook, you MUST have an at-will disclaimer, on a separate page and in different type than the other policies in the handbook.

Q: Are there policies that a company should have?
A: There are a number of policies that every company should have and should distribute to employees.

1. Anti-harassment policy: It is highly encouraged for employers to have an anti-harassment policy that is not limited to only sexual harassment, but also covers harassment based on all protected classes including race, national origin, religion, age, disability, etc. There are many reasons for this. If your company is defending a harassment lawsuit, you will need to demonstrate that you have an anti-harassment policy with multiple avenues of complaint. This means that if the victim does not feel comfortable complaining to his or her manager, for example, then he or she can complain to others in the company that have a duty to investigate the complaint, or to pass the information to someone who will investigate. A policy will demonstrate the company’s desire to prevent workplace harassment and will protect a company from the imposition of punishment damages by a Court because the company will be able to show that it takes harassment seriously, attempts to prevent it from occurring and promptly corrects it if it does occur. A series of anti-harassment training sessions for managers also assist a company’s defense of a harassment lawsuit.
   
   
2. FMLA policy: Under the Family Medical Leave Act, companies must allow employees 12 weeks of unpaid leave during each 12 month period due to the employee’s own, or a family members’, serious health condition. Only companies with 50 or more employees in a 75 mile radius must provide their employees with FMLA leave. The notice required but be a poster of the FMLA’s provisions in a conspicuous location, and also a written policy. If there is no written policy, then an employee has wide latitude in claiming that the company violated the FMLA when disciplining employees for absences. In addition, there are many ways to calculate the 12 month period in which employees may claim FMLA benefits. The ways to calculate the 12 months are by: anniversary date, calendar year, rolling 12 months, looking forward 12 months from the date leave is taken or looking backward 12 months from the date leave is taken. If the company does not define the period, then the employee will be able to use the 12 month period that is most beneficial to him/her, often to the detriment of the company.
   
   
3. E-Mail/Internet Usage Policy: Many employees claim that their workplace computers contain personal and private information that should not be reviewed by a company. Courts have generally agreed unless the employer has an E-Mail/Internet Usage policy. Such a policy would inform the employee that their computers are for work purposes only and that their usage can be reviewed at any time, for any reason. This limits the privacy arguments employees can make, and allows employers to utilize email/internet usage for disciplinary purposes where necessary.

**The information contained in this article does not constitute legal advice and should not be relied upon for legal purposes. You should always seek the advice of an attorney before implementing or revising employment policies. If you have any questions about these or other labor/employment law topics, please contact Dena B. Calo, Esq., Genova Burns & Vernoia, One Port Center, 2 Riverside Drive, Camden, NJ 18103, dcalo@gbvlaw.com.

Dena Calo
http://www.gbvlaw.com/