What Should be Included in an Employee Handbook, and When is It Updated?

What Should be Included in an Employee Handbook, and When is It Updated?

Notice Required by both Federal and State Law‍

In Texas, an employer is not legally required to adopt an employee handbook. Yet, federal and state employment laws require employers to notify employees of several rights. Because notice is not explicitly required to be in a standalone document, it is convenient for employers and employees that all notices be given in the employee handbook. An employer is sometimes not required to comply with every employment statute. Employers must often calculate the number of employees they employ to determine whether they are covered under a statute. Different labor laws may have unique ways of calculating who counts as an employer’s “employee”.

Federal Law Requirements

Federal employment law supersedes state law regardless of an employer’s location in the U.S. Therefore, an employer’s handbook must also follow federal law.

A disability and reasonable accommodation section that complies with the ADA and the Texas Commission on Human Rights Act (TCHRA) is strongly recommended. An employee’s disability may affect the fundamental job duties of their position. When this occurs, an employer must provide a reasonable accommodation that modifies the employee’s job so that the employee may continue performing their job duties. Examples of reasonable accommodations include adapting existing facilities, modifying an employee’s equipment, and reassigning the employee toa vacant position. Employers are not required to displace current employees or change the essential functions of the employee’s job. Accommodations do not have to be the best available option, so long as they are effective and do not pose an undue hardship that requires significant delay or expense in relation to the employer’s available resources and daily operations.

An employee policy must clearly communicate that employees are eligible for unpaid, job-protected leave for specific family and medical reasons under the Family and Medical Leave Act (FMLA). However, the FMLA allows employers to require certification by the employee to support their need for FMLA leave. If appropriate, the employer may also require the employee’s physician to sign the certification.

The TCHRA requires that every employer prohibit discrimination based on the following protected classes: race, color, religion, sex (including pregnancy, child birth, or a related medical condition), national origin, age (40 years or older),physical or mental disability (actual or perceived), or genetic information. Local government in Texas may have additional protected classes. In addition to prohibiting discrimination against an employee’s religion, Texas also requires that employers reasonably accommodate an employee’s sincerely held religious belief.

Finally, while all current employee handbooks often have policies expressly prohibiting sexual harassment, they should be updated if they do not include other common forms of harassment stated in the TCHRA and Title VII of the Civil Rights Act.

State Law Requirements

While Texas has a strong presumption that all employment is at-will, employee handbooks should specify that either the employer or employee may terminate the relationship with or without notice. This presumption does not apply to contracts that are either explicit in or implied by the employee handbook. Thus, employers should include a disclaimer in their employee handbooks stating that the handbook creates no explicit and implicit contracts.

Texas also requires that employers abide by its Day of Rest Law, Equal Employment Opportunity, and Witness Duty and Court Appearance Leave. There are also several forms of paid leave that Texas law requires, including jury duty, voting, and military leave. Several cities in Texas also have local ordinances that mandate paid or earned sick time for employees.

Finally, employers should specify what steps they will take in terminating an employee and what notice duration, return of company property, and exit interviews the employers expect. However, all handbooks must have an anti-retaliation policy that protects any good faith reporting of a lawful right from retaliation by an employer. The Texas Labor Code prohibits both retaliation and discrimination in the workplace based on an employee’s good-faith reporting of a lawful right.

Additional Recommended Sections

Employers should include a code of conduct in their employee handbooks. Further, if an employee deviates from a standard of conduct, possible disciplinary actions should also be clearly stated. This policy should been forced consistently and fairly to avoid being accused of unequal enforcement or wrongful termination.

Handbooks should include anon-disclosure policy to protect confidential materials that the employer discloses to the employee. However, employers cannot prevent employees from complying with a court-approved subpoena that requires them to disclose confidential information. Employers may nonetheless require employees to notify them of a subpoena.

Employers should include a social media, communication systems, and work-hour policy. The National Labor Relations Board (NLRB) will closely scrutinize any social media policy if an employee files an unfair labor practice charge. Therefore, employers should reference NLRB guidance when crafting their policy. Handbooks should also regulate how employees use a business’s official communication systems, such as email and WiFi. Finally, expected work hours, attendance, and pay policies should also be included, together with consequences for non-compliance.

Updating an Employee Handbook

Every employee handbook should include an acknowledgement section where an employee signs and acknowledges that the handbook has been read, understood, and agreed to. Whenever an employee handbook is updated, employees should re-sign the updated handbook to ensure they are up to date with company policies.

Employers should also include complaint and investigation procedures for employees who believe their legal rights have been violated. Different jurisdictions may sometimes require different complaint and investigation procedures, so employers should reference jurisdictional rules accordingly.

Lastly, businesses often expand into new jurisdictions. Business owners should always notify their legal counsel of any expansions so that any new requirements imposed by the jurisdiction are adhered to. Given how often business may change their practices, acquire new clients, and enter new industries, it is always wise to update your legal counsel about any new developments.

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