Poorly Drafted, Neglected or Outdated Employment Law Policies Can Provide a Host of Adverse Unintended Consequences

Employment policies inform employees of the company’s expectations and rules in the workplace, ensure compliance with the law and provide for certain key legal protections. Given the importance of this objective, one would think that the creation of employment policies in an employee handbook would be handled with meticulous care.  Sadly, this does not appear to be the norm. Too often a company’s employee handbook fails to have required policies or contains employment policies that are neglected, difficult to understand and just plain poorly drafted.  As this article notes in more detail below, failure to take the time upfront to craft suitable employment policies cannot only deprive an employer of key legal protections, it can lead to a host of unintended consequences and inadvertently provide employees with the ability to prevail on legal claims that would not otherwise be available to them under the law.

For example, in a case involving the Family Medical Leave Act (FMLA), an employer denied an employee’s request for leave because he was not eligible for leave under the law. When the employee was later terminated for absenteeism, he sued the company alleging an FMLA violation.  Although the court agreed that the employee was ineligible for FMLA leave as stated in the law, the employee’s claim proceeded because the employer’s FMLA policy (as drafted by the employer) was arguably inconsistent with the law and provided for eligibility. The court noted that under the employer’s policy, “a reasonable person in [the employee’s] position could fairly have believed that he was protected by the FMLA.”  Therefore, the employer’s poorly drafted FMLA policy had the unintended consequence of providing an otherwise ineligible employee with FMLA rights, including possible reinstatement and other protections.

Similar scenarios can occur with a variety of other policies, such as disciplinary policies where an employer lists specific types of “progressive disciplinary” options it might take before termination.  Courts have routinely ruled that poorly drafted disciplinary policies can amount to a promise that employers are required to follow specific steps prior to terminating the employment relationship.  In such instances, these policies can create employee rights that negate the employer’s intention of creating an at-will employment relationship. Likewise, agencies such as the National Labor Relations Board are continuing to find that common and seemingly harmless handbook provisions, such as an employment-at-will clause, can violate federal labor law when improperly worded.  Clearly a lesson learned through proper drafting and oversight is preferable to one learned through administrative scrutiny or costly litigation.

Another common error is the omission of legally required policies.  For instance, Minnesota enacted the Women’s Economic Security Act (WESA) almost two years ago, yet many employers are still unaware that WESA requires modifications to employee handbooks in relation to wage disclosure policies.  Likewise, reaching a specific number of employees can trigger additional obligations under already applicable laws, such as the WESA (requiring employers with 21 or more employees to provide certain employee pregnancy accommodations) and the Minnesota Personnel Record Review and Access Act (requiring employers with 20 or more employees to provide employees a specific written notification).

The bottom line is that failing to pay close attention to employment policies at regular intervals throughout the life of the business can inadvertently and adversely affect how a business intends to operate.  Consequently, there has never been a more important time for employers to review their employee handbooks, policies and procedures.  If you are concerned about whether your employment law policies and procedures are hiding a host of unintended consequences, contact Rinke Noonan, Ltd. to ensure they serve their intended purpose while simultaneously complying with all applicable laws and regulations.

© 2016 Rinke Noonan

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