Posting an arbitration section in your employee handbook may put an employee on notice of a company policy or “offer,” of which the employee could be said to be “generally aware,” but it might not, without more, establish that there is an agreement to arbitrate, pints out Gilbert A. Samberg for Mintz, Levin, Cohn, Ferris, Glovsky and Popeo.

There must be evidence of the employee’s acceptance, he explains in a post on the firm’s website.

He illustrates his point with a case from the Eighth Circuit, concluding: “An employer needs to be able to prove acceptance by each employee of an ‘offer’ of arbitration.”

Read the article.

The Eighth Circuit recently ruled that an employee was not subject to the employer’s arbitration agreement, including a delegation clause. The agreement was contained in an employment handbook addendum, which was available to the employee electronically.

Henry Allen Blair, writing for Arbitration Nation, discusses the case in a post about the ruling in Shockley v. PrimeLending.

Blair cites the court’s opinion, which states that “[w]e are aware of no legal authority holding that an employee’s general knowledge or awareness of the existence of a contract constitutes the positive and unambiguous unequivocal acceptance required under Missouri law.”

Read the article.

Drew York, writing in Gray Reed & McGraw’s Tilting the Scales blog, offers some advice on how to “failsafe” electronic agreements with employees.

He describes a scenario in which a company requires its employees to electronically acknowledge receiving, reviewing and agreeing to abide by the company’s employee handbook. One of the workers later is injured on the job, and the company wants to invoke the handbook ‘s arbitration agreement.

“In several recent cases, employees have disputed that they electronically acknowledged an agreement with their employer,” writes York. “This raises an intriguing question: how do employers prove that an employee ‘signed’ an agreement when there is no written signature?”

Read the article.

Image by NY Photographic

An employee misclassification lawsuit can be difficult to dismiss early because plaintiffs are afforded great latitude in crafting factual disputes that can only be resolved at trial, points out a post in the Labor Days blog for Kelley Drye.

Special counsel Michael D. Yim offers a suggestion: one simple sentence in employment contracts, handbooks and policies for salaried employees that would likely reduce exposure by approximately two-thirds in FLSA cases.

He presents the wording of the sentence and then illustrates the  financial impact and disparity of the two calculation methods — first without the “magic words” in the agreement and then with the “magic words.”

Read the article.

By Natalie Lynch
Lynch Service Company

Employee handbooks contain pivotal information about the business and expectations of employees. Handbooks that contain outdated information may contain illegal provisions or lack best practices. This can expose the business to unnecessary civil liability or a backlash by the public for perceived slights or biases. By reviewing employee handbooks on a regular basis, employers can proactively safeguard their company’s interests.

Importance of Employee Handbooks
Employee handbooks contain important information about the business, including general rules, expectations, and protocol. Employee handbooks establish acceptable behavior and defines unacceptable behavior. These important documents often explain the fundamental policies that the business employs. With clear policies in place, it is more likely that they will be followed. If rules are broken, there is a set plan in place to deal with these issues. If the company is sued, the written contents of the employee handbook may protect the business.

Employee handbooks must be carefully constructed, taking into consideration the company’s industry and other factors specific to the business. While setting out the expectations of the business, an employee handbook can often be most effective as a defensive tool against potential lawsuits from employees or others because it establishes that a particular rule or policy was in effect at the time of some specified event that led to the filing of a complaint. If the company followed its own policies and the employee was aware of these policies, there will be less of an argument in favor of the employee.

Importance of Updating Employee Handbooks
Laws are constantly changing and evolving. It is important that employee handbooks are updated periodically to account for these changes in the law. Additionally, employees must be updated about new policies and changes. In addition to providing employees with a copy of the handbook, employees should also sign an acknowledgement indicating that they received the handbook. It is often recommended that employee handbooks be updated at least on an annual basis. Having a professional periodically review relevant laws and regulations can ensure that only the most current information is included in the handbook. Additionally, reviewing the handbook for clarity can help remove ambiguous language. Like with the original receipt of the handbook, employees should be required to sign an acknowledgment indicating that they are aware of the changes and have received a copy of them.

Provisions Included in Employee Handbooks
Handbooks may contain a variety of different provisions based on the particular needs and considerations of the business. However, some common provisions that are incorporated into these handbooks include:

At-Will Statement
By having an employee handbook, the employer will not want to infer in any way that the handbook takes the employment relationship outside of the at-will framework. This provision may state very simply that an employee can be terminated at any point and for any reason. This statement can help shield the business from claims that the employee can only be terminated for cause.

Disciplinary Procedure
The employee handbook should specify a disciplinary policy. This policy may be progressive in nature, such as increasing the severity of discipline as repeated conduct occurs. By following these procedures closely, the business may be able to shield itself from claims of discrimination. Any disciplinary policy should also make it clear that egregious activity will result in immediate termination.

Attendance Policy
The handbook should also specify the attendance policy. The handbook may state that excessive absences may result in termination. At the same time, the handbook should take care to differentiate between regular absences and absences due to medical purposes to avoid violating any federal or state laws.

Overtime Policy
A policy regarding overtime may also be included in the employee handbook. Any policy should take care to comply with the Fair Labor Standards Act. There may be a requirement for managers to approve before overtime work is performed. To avoid legal liability, the time may be paid, but the employee may be disciplined.

Anti-Discrimination Policy
An anti-discrimination policy is an important component to an employee handbook. The employer may state that it has a zero-tolerance policy for harassment. This policy should outline the process that an employee should follow to report complaints of harassment. The policy may provide examples of harassment and outline the potential disciplinary measures that will be followed in the event of non-compliance.

Join Our LinkedIn Group

Employees often seek to use an employer’s handbook, code of conduct, or policies as the basis for a breach of contract claim, writes John J. Buckley in a blog on the site of Norris McLaughlin & Marcus.

He describes a recent case in which a company was sued after an employee discovered he had been the victim of identify theft. It was suspected that the compromise came after another employee gave away some of the de-commissioned company computers.

The plaintiff claimed that the company breached its contract to secure the personal information that he submitted in his job application. But the federal district court. The court found that no contractual promise was made in the company’s policies because those policies “existed for the purpose of protecting the company from harm,” not to benefit employees.

Read the article.

Join Our LinkedIn Group

Laura Bartlow of Zelle LLP writes in a post on JDSupra that the very first item on her list of rules for employers is this: Don’t make promises to your employees that you can’t or won’t keep.

“Employers’ promises include those set out in employment contracts, of course, but there are others promises made by employers that can create legal liability and that are worth regular attention,” she explains. “And it works both ways – employees, related businesses, and vendors may also be obligated by the agreements that they have made with you.”

She discusses some of the most important points to consider, including: obligations in written employment contracts’ obligations in written policies and handbooks; obligations of employees, related organizations, and vendors; and obligations created by government contracts.

Read the article.

A recently decided case from an Ohio Court of Appeals found that an employee handbook may create a contract as to the terms of employment, including an employee’s rate of pay and insurance coverage, absent a clear disclaimer to the contrary, according to an article by Michael C. Griffaton of Vorys, Sater, Seymour and Pease LLP.

“The Court explained that ’employment manuals may constitute binding contracts between employees and employers provided all necessary elements of an implied contract are present.’ Thus, an employee claiming the existence of an implied contract must prove offer, acceptance, consideration, and mutual assent,” he wrote.

Read the article.