The legal and human resources community continues to promote the virtues of written company policies to a community of unenthusiastic and reluctant small business decision-makers. Small employers could see themselves operating “under the radar,” but the threat of litigation may be the “tipping point” motivation for many small business decision-makers to publish and distribute written polices. The statistics from the states’ civil/human rights agencies, EEOC and even courts, overwhelmingly favor the employer. The results indicate that a small business is unlikely to have a discrimination charge filed against it, much less go to court.
However, the small business decision-maker can be bound by not only what’s in writing but also by his or her spoken word or actions. The employer’s past practices may be enough to hold the decision-maker accountable. According to statistics and legal interpretation, the small business decision-makers will more likely meet their needs and desires to maintain control and stay out of court with, rather than without, well written employee handbook language.
The Literal and Permissive Approach May Be a Flight to Safety
The dilemma for the decision-maker and their legal counsel is that once the necessity of the handbook is agreed upon, how should the language read in order to provide the flexibility and control desired along with the legally defensible protection? Assume that the outsider, judges, juries, state and federal agencies, suspicious of the decision-makers’ motives, will take handbook language as literal. Audit the handbook language from a literal perspective. Any promises made must be kept. Consider permissive language rather than mandatory. It “may” be done rather than it “shall” be done. “A pattern of excessive tardiness ‘could’ lead to disciplinary action up to and including termination” is much more manageable language than “being late to work ‘will’ result in termination.”
A practical real life example is the policy of granting two weeks vacation to all new employees. This looks reasonable on paper. But what happens when a top candidate for a job, an applicant that would be considered an “A” player by the decision-maker, comes to the interview with twenty years experience and wants four weeks of vacation? The decision-maker either violates the handbook policy or turns the prospective employee away. Few employers are going to fail to benefit from hiring an “A” player for two additional weeks vacation. Instead consider writing the vacation policy from a “permissive” methodology to indicate that new employees will start at a “minimum” of two weeks.
But What About Treating Everyone the Same?
For the small business decision-maker, treating the employee with great results, outstanding performance or exemplary behavior the same as the employee with mediocre results sends the wrong message. The mandate from Title VII and the EEOC is not that everyone be treated consistently but that the differentiation not be based on age, sex, race, or any other legally protected characteristic. Equal opportunity does not necessitate equal treatment.
Turn Down the Volume and Simplify the Language
At the very least, handbook language should do no harm. At the very best, the language should inspire new employees, support management at all levels in daily operations, eliminate confusion, ward off lawsuits and provide legal counsel with solid defensible documentation that will stand up to potential legal challenges. Given that a particular jurisdiction may take a contractual interpretation of any handbook language, safety lies in writing simple, permissive policy versus voluminous mandatory procedure. Well-written handbook language can provide the perfect balance of desired decision-maker control, defensible legal context and needed communication to employees.
Disclaimer: This document is intended to help readers consider various issues associated with employment practices and handbook language in the workplace. The author is not engaged in rendering legal advice or professional legal services and no attorney client relationship is created. Anyone who creates company policy with (or without) the use of this document should consult with qualified legal counsel before relying on it. The law is rapidly changing and may vary from jurisdiction to jurisdiction.
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Last modified: May 17, 2012
Thanks for the great article. I think the idea of permissive wording is important.