Mintz on Air: Predictions and Practical Policies - Employee Handbooks: Do You or Don't You?

In the latest episode of the Mintz on Air: Predictions and Practical Policies Podcast, ESG Co-chair Jen Rubin hosts a conversation on the challenges and best practices surrounding employee handbooks. This episode is part of a series of conversations designed to help employers navigate workplace changes under the upcoming Trump administration.

Jen is joined by Employment Member Natalie Groot, to discuss:

1. Why having an employment handbook matters
2. How to ensure your handbook reflects current laws and company practices
3. Strategies for managing multi-jurisdictional challenges in your workforce
4. Practice advice on creating handbooks as “living documents”

Listen to gain insights on creating and maintaining effective employment policies.

Predictions and Practical Policies - Employee Handbooks: Do You or Don't You? - Transcript

Jen Rubin (JR): Welcome to Mintz on Air: The Predictions and Practical Policies podcast. Today's topic is Employee Handbooks: Do you or don't you? I'm Jen Rubin, a Member of the Mintz Employment Practice. I have a San Diego based Bicoastal Employment Practice representing management executives and corporate boards. Thank you for joining our Mintz on Air podcast, and I hope you've had the opportunity to tune in to our programs previously.

If you have, you know that my guests and I have been discussing a variety of employment related topics and developments. If you have not tuned in previously, I would invite you to access our content on the Insights page at mintz.com.

Today, I'm thrilled to be joined by my partner, Natalie Groot, who is also an employment lawyer. Natalie is based in our Boston office. Natalie advises businesses on employment and separation agreements, terminations and reductions in force, internal workplace investigations, and employment policies. And like me, Natalie, litigates employment disputes. Natalie acts as a go to partner for our clients of all sizes to ensure their employment policies and practices and their workplace culture and communications align with applicable law and best practices. So welcome, Natalie. Thanks for joining Mintz on Air.

Natalie Groot (NG): Thank you so much for having me. I'm an avid listener, so I'm thrilled to be on.

JR: Today's topic is Employee Handbooks: Do you or don't you? Some people might think the topic of employee handbooks is mundane and boring. If you've been tuning in to our podcast, you know that there's really nothing boring ever about employment-related topics. I'm not just saying that as an employment lawyer, I think that is actually verifiably correct.

Let me start by asking you, Natalie, something that seems obvious to us as employment lawyers, but perhaps maybe not to others: What is an employee handbook?

The Purpose and Importance of Employee Handbooks

NG: It's a great question and I agree with you. There is nothing boring about employment law, particularly if you have good stories for the dinner table.

The employee handbook is a written record of an employer's employee-related policies. They can span a number of topics, including general employment policies, terms, conditions, standards, and they can include policies around wage and hour issues, time off, leaves of absences, employee conduct and work rules, and also electronic media, social media, and other policies like that.

An employee handbook is intended to detail a company's policies and practices, both in accordance with applicable law, but also in accordance and in alignment with the company's culture and policy expectations for its workforce.

JR: That makes sense, and it's very clear and understandable. Let me ask you this question: The instant you publish this employee handbook, this compilation of policies and practices, and expectations, isn't it immediately out of date? What are your thoughts on that?

Keeping Employee Handbooks Current

NG: Yes, it can be. And that can cause frustration for employers and employees alike. What's really important about employee handbooks and what many employers get right, and some don't, is that it should be a reflection of the company's actual practices and actual policies. So certainly, in terms of out of date, I think there are two ways to understand that phrase Jen.

One is something written down in a handbook that the company doesn't actually do anymore. I think it can be incredibly problematic for a company to say, “if this happens to you, we're going to do steps one through five,” when in fact the company no longer does steps one through five. That is something that's really important to get right.

To your point also about out of date, employment laws are constantly evolving and changing. We've seen it obviously throughout the past decades, but particularly, I think post-Covid when everyone's getting used to this new workplace. That can be difficult when you spend time putting together a policy that you think is compliant with a certain state law, and then that law changes or adjusts. There's no way to ensure that a handbook is constantly and continually up to date, although we do call it a living document, because that would be a goal.

Most employers look at a handbook on an annual basis to ensure as much compliance as possible.

JR: Interesting. You talk about a living document. We all appreciate it, particularly here in California. Every day we wake up and there's a new paradigm of employment laws that are facing employers. It happens so quickly, it's almost impossible sometimes to digest all the different changes that occur.

This concept of a living document goes to the ‘employment handbooks: do you or don't you’ concept. What are your thoughts on making a compilation of policies that are electronic and that can be changed easily? If you go down that road – which is something that I’ve advised clients to do in the past – how do you communicate those changes to your workforce? How do you make it work as a living document?

NG: That's a great point, Jen. Traditionally, handbooks have been 20-to-80-page documents, and employees receive them on their first day of work. Between you, me, and your listeners, what percentage of employees actually read employee handbooks? I would bet it to be quite low.

The idea of removing this large document, which can be cumbersome and difficult to digest given the enormity of it or the number of policies included and instead creating electronic policies, can work really well.

What is important when doing that is to ensure that the policies that are very important to have, the policies that employees are going to be looking for, and more pessimistically, the policies that an employment attorney who litigates these matters, will want to be looking for to rely on in the company's defense, should be there.

If you move from this sort of larger document to more selective policies, you must make sure that you connect with counsel to understand: What are the policies that employees are looking for; what are the policies that employment counsel is looking for; and what does the law require as some policies are required by law.

Navigating Multi-Jurisdictional Challenges

JR: That was a great segway as I was going to ask you to give a few examples of some of the policies you really would recommend that an employer had? Whether it's in writing and something that's handed out on the first day or whether that's something that's available in a living document, can you give a few examples?

NG: The ones that I point to or look for most often when employees are looking for guidance or I'm looking to defend a claim, are an ‘at will’ statement. It should be in an offer letter. I like having it in the handbook that the person's employment is at will. It is not guaranteed for any specific term of period of time. Employment can be terminated at any time by either party.

Looking at nondiscrimination, non-harassment, equal employment opportunity policies are really important to have a written policy that clarifies the employer's position and commitment to those principles. Going a bit further on the discrimination and harassment piece, having policies around disability accommodations, workplace investigations are very important. If I have a sexual harassment concern in the workplace, who do I go to? There is a legal obligation, as I noted, for employers to provide the state and federal administrative agencies. But also, do I go to the head of HR? Do I go to my manager? Do I go to the CEO? Who is supposed to intake these concerns? On the investigation side, I think having a point of contact written down somewhere is really valuable.

JR: That's helpful and a great reminder, and we're going to get to this in a moment about compliance with the state and local law in which an employer does business.

A policy in Massachusetts may look different from a policy in Texas. There's no question that employers are obligated to comply with both if, in fact, they have employees performing services in those jurisdictions. I'm going to get to that in a minute.

I want to go back and revisit because I thought it's an interesting point that you said at the top, in terms of what is an employee handbook? It's a reflection of the company's actual policies and practices. I want to tease that out a little bit because this is something that I know you and I both face constantly as employment lawyers with some of the challenges to our clients. How do you handle this concept that the handbook is really aspirational? In other words, it's a statement of what the employer wishes would happen with respect to how its employment policies are administered or how things are investigated or how things are responded to. I'm going to call it reality. What actually happens on the ground and in practice. Can you talk a little bit about how to marry those two concepts: aspiration and reality?

NG: Handbooks can be aspirational. In an ideal world, we would have a committee that would do X, Y, and Z and meet weekly. At the end of the day, the proposed members of the committee are incredibly busy and they're not meeting, to give one example. Often when I read through employee handbooks for our clients, I leave comments that say, “Do you do this?”, “Do you do this?”, and “Do you do that?”

It's really important for the company to look at their policies and not just say, this is compliant with the law. That's one piece. This is compliant with best practices, that's another piece. This is reflective of what we do here at this company. It's a third piece that is vital.

If your company is going to put something in writing to say, ‘we do this and this is how we do it,’ it's imperative that this is how they do it. It makes it difficult for employees to navigate the workplace when what is expected from them on a day-to-day basis is not what is written in the governing policies of their employment.

I think marrying what's aspirational and what's realistic is part of every leader's job in a business, and as outside employment counsel, it's something I'm working through every time I'm looking at any handbook or related policies.

JR: It's a great reminder to everybody out there in employment land, that having human resources professionals is like having heroes. They are on the ground, getting this work done together with legal, whether it's in-house counsel, or outside counsel. They are taking the practical road for ‘this is how things work at our company and reflective of our culture together’ with ‘this is how it should be done from a legal perspective.’

These two things really go together hand-in-hand. It does become very important. You had mentioned this part of the podcast a few minutes ago about having a regular review, whether it's annual or otherwise. That review really needs to take place both with legal, whether in-house or outside counsel, together with the business folks, including human resources professionals, to make sure it's actually happening the way it is happening.

Making Things Work Across Multiple Jurisdictions

JR: I want to come back to the last point I want to make, and I think this is one that really is a constant difficulty and challenge for multi-jurisdictional employers: How do you manage that multi-jurisdictional employment situation? In other words, many of the clients that you and I work with, have employees in each of the 50 states. Each of the 50 states and the federal government might have different approaches to regulating the employment relationship. There's no one size fits all approach to this, and this is something that many employers struggle with when they're putting together a handbook. Again, whether it's a document that's reviewed annually or a living document that's on an intranet somewhere that gets updated periodically. Do you have any advice for our listeners who have these multi-jurisdictional workforces on how to create these policies and administer these policies that makes sense across the many states?

NG: It's a great question. Post-Covid there were so many employers which required all employees to be in a physical workplace and then only had offices in a handful of states. It was much easier to administer employment policies and manage the ramifications of employment laws during Covid. As we all know, remote work exploded, and as part of that explosion, it has kept up where many of our clients, not even our large clients, many of our smaller clients have employees in dozens or more states across the US.

There are three ways that employers most typically manage this sort of multi-jurisdictional employment, when we're looking at handbooks and employment policies.

One, they say, “the majority of our employees are in Massachusetts, so we're going to have all of our policies really targeted towards Massachusetts employees, consistent with Massachusetts law,” and then they will have either addendums where it says, “here's our nondiscrimination policy for Massachusetts, but if you're in New York, look at addendum A.” New York has the employee complaint form so something that was separate than Massachusetts would be in an addendum. That can be comprehensive. But as you and I have both seen that can also lead to hundreds of pages of employment policies. You have Massachusetts taking up the first 50 pages and then, five pages for every state that employees are in. That can be really difficult for employees to navigate.

What's also been popular is to take the most generous provision of whatever state your employees are located in and provide that for all employees. If Massachusetts provides a benefit, even if you have an employee in Oklahoma, we're going to offer it to them too. That can work, although because we don't have many employment laws on the federal scale, even when two states are moving in the same direction, they're never totally in step. This means that if you try to do that, you'll still need to have some carve outs. Maybe it's for paid sick time there's a cap of 48 hours. But if you're in X state it’s 64 and if you're in Y state it's 80 and you can accrue. There's some sort of footnotes that actually give the most generous provision that makes sense on a national scale, and then still has those carve outs.

The third point is that I have clients who are still primarily based in a limited number of states and then have one-off remote situations. Some of those clients will say, “we're going to have these comprehensive employment policies where we have considerable numbers of employees, and if our employee in this state has a question, we'll make sure we get them the information they need.”

Obviously, the general policies like nondiscrimination and non-harassment and Equal Employment Opportunity will apply universally, but they don't go into the long addendums for every state.

Key Takeaways for Employers

JR: I find that interesting. One of the things you did not offer, and I completely agree with, is to simply have AI or Mr. Google write your employee handbook. Folks, please know there's no accountability when that happens. Going to Google or whatever your search engine of the day is or going to AI is an option, but I don't think it's a very good option, because if you're not asking the right questions, you are not going to get the right answer. There's that lack of accountability. That's just a plug for contacting your friendly neighborhood employment lawyer like Natalie and me.

Setting that aside, I want to do a quick wrap up because this has been really useful, Natalie. This is a great part of the debate of Employee Handbook: Do you, don't you? What I heard is make sure your handbook, whatever iteration it appears in, is a reflection of the company's actual policies and practices. Make sure that you've got yours legally mandated in what state or locality you are doing business in when you answer that question, making sure that you've thought about doing a review, whether it's annual or otherwise, because these policies, practices, and laws indeed are constantly evolving and changing.

Making sure that you've thought about how you want to approach this multi-jurisdictional kind of challenge, whether you want to do a master agreement with addendum, whether you want to do something that's kind of targeted at where most of your employees are, or whether or not you want to have folks contact human resources or your other business folks when they need specific help in a state where maybe you only have a few people.

There are different ways to do it. I think at the end of the day, my suggestion is do it in a mindful way. Partner with legal, partner with your businesspeople, and make sure you've thought about how it is you really want to function as an organization, and make sure it's all consistent with your culture.

Once again, I'm Jen Rubin. Thank you, Natalie Groot. For those who tuned in to our Predictions and Practical Policies podcast, visit us at mintz.com.

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