Idle Handbooks: The Three Things That Aren’t in Your Employee Handbook and How They Can Hurt You

Man sprints holding an employee handbookEmployee handbooks. Just the mention of them is enough to induce narcolepsy in even the most fervent compliance devotee. It inspires dread in senior management, and anxiety in your HR staff, They'll go to bed with nightmares about slogging through dozens of pages of rules regarding time clocks, meal breaks, performance evaluations and jury duty leave.

Not having an employee handbook is bad. Having one that's incorrect, inaccurate or incomplete is even worse. You see, handbooks are considered a complete record of your employee/employment policies, and any omission will be (legally) determined to be purposeful.

As healthcare business attorneys, we've seen a lot of employee handbooks. We've drafted our share, and had the chance to review and update many more. The most common problem is simply failing to update. Employment law is a constantly developing area. You should be reviewing your handbook annually, and have it professionally reviewed every three years. Yet, most practices haven't reviewed their handbook since they first implemented it. That's just begging for a lawsuit.

If that's you, or if you haven't even gotten around to that handbook in the first place, here are three of the most common omissions and how they can hurt you:

· Social Media. Social media is the most pervasive and invasive social force since the telephone itself. It has come to dominate far more of our lives than we ever could have expected back when the only way to watch a cat do something goofy was to actually own a cat. Facebook users comprise 68 percent of American adults and 80 percent of the time spent on these sites is done via mobile devices. So, whether you like it or not, your employees are on social media, and many of them are using it during their work day. Without a written policy on both the use of these sites at work and the use of them away from the office as a representative of the practice, you simply can't enforce what you expect these behaviors to be.

· Drug Abuse Policy. In November, Nevadans voted to legalize recreational marijuana use. Sales started on July 1, and were so strong out the gate that area dispensaries nearly ran out of cannabis. If that happened, the slow-moving, mildly angry mob could have been devastating. Just because a drug is legal in the state, however, doesn't mean you have a right to use it wherever and whenever you want. Which makes your employee drug policy likely outdated. Modern drug policies include both legal and illegal intoxicants and, like state regulations, require evidence of impairment before testing for a legal intoxicant. For example, testing an employee for alcohol usually requires some evidence that they are (or were) under the influence while at work. Failure to update your drug policy (or to even have a drug policy) may make drug testing and related terminations difficult, impossible or even subject to legal action.

· Employee Communications Regarding Pay. If you're like most employers, you don't want your employees talking to one another about their compensation. We have read dozens and dozens of handbooks with "pay secrecy" provisions. But here's the bad news: Those are illegal, and have been since 1935. Under the National Labor Relations Act, private-sector employees have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." The National Labor Relations Board has long held that "pay secrecy" policies violate this law. In other words, if your employees bring a labor action against you based on one of these policies, you're going to lose, and then pay. Big. In 2014, then-President Obama signed an executive order which prohibited federal contractors from retaliating against employees who talk about their compensation. Getting your practice (and your handbook) compliant with the NLRB is an inexpensive way to avoid expensive liability.

There are countless other ways in which an employee handbook can become outdated and expose you and your practice to extraordinary liability. There is very little more satisfying than ending up in a dispute with an employee, only to have your corporate counsel trot out a copy of your employee handbook (including a signed statement from the employee in question, acknowledging receipt, understanding and agreement), and finding out you're totally covered.

Employee handbook updates are not sexy, but they are the type of inexpensive preventative care that you're always recommending to patients. An ounce of employee handbook updating is worth pounds and pounds of money spent on litigation.