From Red Flags in Employee Handbooks to Django Unchained

Two years ago, Verizon paid $20 million to settle disability discrimination claims arising from a no-fault attendance policy in the Verizon employee handbook. The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.

No-fault attendance policies are big red flags in employee handbooks. Here are eight others that plague employers across the country:

1. Illegal overtime policies: Under the Fair Labor Standards Act, all employees must receive minimum wage. Further, covered non-exempt employees must receive overtime pay (at least time-and-a-half) for hours worked over 40 per work week. Employers who mess with this — e.g., by declaring that overtime pay does not kick in until employees work more than 50 hours in a work week — are asking for trouble. And by trouble I mean back pay, liquidated damages, and attorney’s fees.
2. Missing at-will language: Nearly everywhere throughout the country in non-union private-sector workplaces, employees are considered at-will; i.e., they can be fired for any easy reason or quit for any reason. In some states, an easy way to foul that up is to forget to include at-will language in your employee handbook. If there is an argument that the employee handbook can be read as a contract of employment for a specific period of time, rest assured that the lawyer who represents your terminated employee will make that argument.
3. No family/medical leave language: You need this for a few reasons. Here are 11 of them. One more reason is to define the method in which FMLA is calculated to cut down on days lost due to FMLA leave.
4. English Only: Requiring employees to only speak English may have the effect of creating a national-origin discrimination claim. English only policies should used sparingly, and only in certain situations.
5. Progressive discipline and probationary periods: As Jon Hyman, of the Ohio Employer’s Law Blog writes in his new book, The Employer Bill of Rights, these policies are holdovers collectively bargained relationships in days when unions were much more common. If you don’t have a unionized workplace, odds are you don’t need these policies either.
6. Overly broad policies that violate the National Labor Relations Act: Before you tell me, “Hey, my workplace isn’t unionized. Why should I care?” just stop. I’ll tell you why. The National Labor Relations Act applies in the private sector to both union and non-union workplaces. In fact, over the past year or so, the National Labor Relations Board has begun to reinvent itself as a champion of employee rights in non-union workplaces. The Act protects various forms of employee speech, including the right to get together to discuss wages, benefits, and other terms and conditions of employment. So, if you have handbook policies that infringe on this right (e.g., overly broad confidentiality language, social media policies that preclude criticism of the company, etc.), you’re asking for trouble.
7. Unwritten policies: If you have a particular practice or procedure that effects your employees, here’s a novel idea — be transparent about it. Commit it to writing and put it in your handbook. It’s cheaper than ordering a bunch of crystal balls.
8. No lawyer review: Yes, you may save a few dollars, initially, by drafting an employee handbook without the employment lawyers reviewing and blessing (and billing you for) it. But in the end, well, let’s just say I told you so.

From Django Unchainedto employee handbook red flags. You’ll never watch a Tarantino movie the same way again.