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Watch the Language in Employee Handbooks

5/22/2018

Your company needs an employee handbook or personnel manual to ensure that everyone understands the policies, procedures and rules.

An Employee's Genetic Information Is a Protected Class

The Genetics Information Nondiscrimination Act of 2008 (GINA) protects employees from discrimination based on their genetic information. GINA also prohibits health insurance carriers and group health plans from using genetic information to deny coverage.

Typical employee handbooks outline the nondiscrimination requirements of the Equal Employment Opportunity Commission to not base employment decisions on such factors as gender, age, pregnancy, race, color, religion, country of origin, citizenship, mental or physical disability, military service or veteran status. Employers who have not already done so need to add genetic information to that growing list.

In addition, employers should ensure that they also list any factors required by state and local law, which might include political affiliation, sexual orientation, gender identity, familial status and marital status.

But improperly drawn, a handbook or manual can create a binding obligation that can be used against you.

What you don't want is for the documents to be interpreted as an employment contract. Keep that in mind when crafting handbooks so you lower the risk of running into unwanted legal hassles. Here is a list of Dos and Don'ts:

Don't use phrases such as "permanent position" or "the company promises." There should be no statements that you don't intend, or may not be able, to honor.

Don't leave explanations of the results and consequences of actions open to interpretation. Be clear, concise and comprehensive.

Do include a disclaimer that the manual isn't and shouldn't be considered an employment contract.

Do reserve the right to use your discretion in individual cases involving policy statements or procedures.

Do reserve the right to make changes at any time, without notice.

Do require employees to affirm in writing that they have read the manual, including disclaimer provisions — and that they understand it's a general presentation, not a contract.

Many states have held that employee handbooks can be enforceable contracts. Some courts have even found that handbooks or manuals create a presumption that the parties intended it to be a contract. That forces the employer to prove to a jury that a contract wasn't intended.

However, there are instances where courts have found handbooks unenforceable for such reasons as:

Although these exceptions exist in some states, don't rely on them when drafting and distributing your manuals and handbooks. It's a good idea to get professional help when spelling out your policies and procedures. You will reduce the chance of a costly, time-consuming, disruptive legal battle.

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