Small Business Documents, Part V, Company Handbook, Cont. (From Employee Reviews to Exit Interviews)

By Beth Borrego / Published December 2022

Editor’s Note: Parts I, II, III, and IV were published in the June, July, October, and November 2022 issues of Cleaner Times. To read these articles in their entirety, please visit www.cleanertimes.com. This month’s article continues the determination of what elements to include in your company handbook.

     Employee reviews, discipline, and personal development—use this section to outline your company’s approach to performance reviews, their frequency, who is involved in the process, and the purpose of the process. Also, outline the disciplinary process used by your company, such as verbal warnings, written warnings, and terminations. If your company conducts exit interviews, that should also be noted. If your company uses ongoing training or team building, it’s a good place to outline how they are implemented. 

     Code of Conduct—describe, as clearly as possible, what is deemed to be acceptable and appropriate professional behavior and that you expect this standard to be maintained at all times. Describe the disciplinary actions that may be taken should an employee fail to adhere to your company’s professional code of conduct. This is also a good place to remind employees about confidentiality, and also that in the course of their employment they may have access to confidential information, which may not be used or divulged either directly or indirectly during or after their employment. Remind them that a breach of confidentiality is a very serious matter and is grounds for discipline or termination. 

     You should also have a policy regarding the copyright and protection of your intellectual property. It should be known that your employees are not entitled to any of your intellectual property arising out of any work produced, including writing or text, graphics or images, photos or videos, or audio. It would be wise to add that employees are prohibited from capturing images or video on personal devices like cellular telephones, personal cameras, and so forth without authorization. While your business may not encounter the media very often, it doesn’t hurt to have a policy regarding giving interviews, either orally or in writing, since at some point in time, there could be an occasion where an event may warrant publicity for your company. Make sure you also mention how your company handles confidential documents and matters pertaining to their employment, as the confidentiality of your employees’ matters should be strictly confidential, and they need to know you take it seriously. 

     Disciplinary action—it’s important to outline the procedures you have in place for disciplining an employee. Make sure to mention that the company may discipline any employee for actions including but not limited to inadequate performance, misconduct, and any breach as outlined in the employee handbook or otherwise communicated to the employee by the company. You might consider that some of the offenses may be severe enough in nature to warrant immediate termination of employment. Some of these may include but are not limited to the following:

• Any material breach of your handbook
• Dishonesty or theft
• A situation that affects your business financially or affects the credit of the company
• Committing any conduct that is in direct conflict with the code of conduct outlined and presents your company in disrepute.
• Falsification of any company records, work orders, timesheets, etc.
• Willful damage to company or customer property
• Unauthorized absence from work
• Any act of violence, threat of violence, or harassment of any kind against anyone affiliated with or not affiliated with the company
• Drug or alcohol use
• Disclosing confidential information
• Unauthorized and inappropriate use of electronic media

     Family and Medical Leave Act (FMLA)—it is important to become familiar with and to abide by the laws set forth in the FMLA. There is a PDF available for download that should be given to each employee and posted with other job notices. It is on the U.S. Department of Labor’s website at https://www.dol.gov/agencies/whd/fmla and outlines the specifics for both men and women who are covered under this Act. Even if your company is small enough to be exempt from this Act, providing a leave benefit, paid or unpaid as your company is able, is a wonderful benefit to offer an employee who is undergoing a life-changing event. 

     Smoking and the workplace—you will have to determine if your workplace is smoke-free or not and outline the specifics of that policy. For example, is smoking allowed in the shop where materials are stored, in company vehicles, or on a customer’s property? Will you provide a designated smoking area at your place of business so that nonsmokers may enjoy a healthier, smoke-free environment? Keep in mind that even if you are a smoker, others may not be, and you must think about the health and well-being of those who do not smoke as well as those who do. If you have nonsmokers among your employees, this will mean setting boundaries. 

     Failure to report to work—this is a serious offense and should stand on its own in the handbook. It should be made clear how this will be treated and what the company policy is on job abandonment. For example, you might say something like, “Any employee failing to call in or text (if employer accepts text messages) to work by (fill in the time of your choice) on a day he or she is scheduled to report to work will be deemed to have abandoned the job and voluntarily quit.”

     Drug and alcohol policy—this may seem like a no-brainer, but you must outline this policy and make sure you enforce it. It’s a good idea to perform drug tests as a part of hiring a new employee. Even the smallest of businesses can do this with today’s home kits, but a laboratory test is still the best way to get accurate results. Make it clear in your policy that the possession or use of drugs or alcohol in the workplace is strictly prohibited and grounds for immediate dismissal. It is also important to state that any workplace injury will result in immediate drug testing. The company has a responsibility to look out for the welfare of all employees, and any employee under the influence is a potential hazard to others. Any employee who is on a prescription medication that may impair him or her and make the employee unable to work with machinery (or make him test positive for a banned drug) should contact his manager or the human resources department confidentially to make them aware of the situation. 

     Internet, email, and telephone activity—it’s important to define your company policy on the use of the internet, email, and telephones (cellular or land lines). This helps to protect you from both criminal and civil liability from employee use. You might want to outline something in the handbook along the lines of the misuse of telephones, email, and internet that includes the following:

• Any transmission of vulgar, abusive, defamatory, inflammatory, obscene, or racist communications
• Searching for, viewing, and downloading objectionable or pornographic material
• Viewing offensive material
• Transmitting any confidential or sensitive information about an individual, client, or potential client
• Any action that would violate any state or federal law governing communications
• Any attempt to damage or destroy any data owned by the company in connection with its business, including electronic or physical damage

     Security—your employees should never give out any entry passcode or computer password. Unauthorized persons who are not employees should be prohibited from access to designated employee-only areas at the workplace, company vehicles, and job sites, and they should be prohibited from using any equipment, including mechanical or electronic devices. Making copies of truck keys or keys to any other equipment (including toolboxes) that is key-started is prohibited. Software licenses are paid for and remain the property of your company. Infringing on the license and making use of the software for your personal use should be strictly prohibited and treated as theft. Internet use and the browsing of non-work related sites should be kept to a minimum, and it is suggested that it only be done on the employee’s break or meal time. Material that violates the company’s policies should not be viewed at any time. You might want to state that your company has the right to ask employees to not share confidential information online or on any personal social media accounts. Mobile phone use and texting may only be done during breaks, and may never be performed when operating any vehicle, tool, or equipment.

     Cameras and job photography—your company may require that employees take photos of the work they routinely perform. Cameras supplied by the company should be for the sole use of work, with the company retaining all rights to any and all electronic images, videos, and audio. These photos should include the work site before any work begins and any anomalies, such as broken items like windows or personal effects that are in a state of disrepair; and if the customer is available on site, bring it to their attention. After the work is completed, another set of photos should be taken from the same location. This not only showcases the work and lets you know how well your employees performed, but also serves to act as proof of the conditions present before and after job completion. This protects all parties involved. 

     Company benefits—List and describe any benefits you’re offering your employees, being specific about when they will become eligible to receive them. Benefits range from expensive to inexpensive, and your creativity will allow you to offer unique benefits that your employees might really enjoy and look forward to. Some of the more common benefits are sick time, vacation time, company observed holidays, and health insurance. You might also consider a safety bonus, birthday gift, or perhaps a reward based upon achieving specific goals. Many companies offer a bereavement leave of three days, either paid or unpaid. You might also implement employee of the month or year and have company gatherings and events. 

     Exit procedures—at some point, you’ll say goodbye to your employees; and while the hope is that your workers will be with you for many years to come, the reality is that some will not be. It’s important to have a procedure in place to account for the return of all company property, equipment, tools, uniforms, and so on. You’ll also need to conduct an exit interview. Unlike the initial interview, the exit interview is specifically designed to help you discover ways to improve your company, your working conditions, and your products and services.

     As we wrap up the discussion about employee manuals, it is important to know that some topics can be problematic and get you into trouble. We will now discuss those areas so that you can adapt and update your manual accordingly. 

     Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to act together to improve wages and working conditions and to discuss wages, benefits, and other terms and conditions of employment, with or without a union. The National Labor Relations Board (NLRB) enforces the NLRA, and many courts have found that pay secrecy or confidentiality rules violate Section 7. It is important to investigate this to see if it applies to your business. Don’t take any contrary action or implement company policies that could be construed as to restrict Section 7 rights. It’s better to communicate information about your company’s compensation policies and to educate your staff on them. 

     Another problematic area is company policies regarding criminal convictions. These policies may disparately impact a protected class and violate federal, state, and local laws. It is best to follow the Equal Employment Opportunity Commission’s (EEOC) guidance that employers cannot simply disregard an applicant because he or she has been convicted of a crime. Employers should remain aware of state and local “ban-the-box” laws that provide further guidance on inquiring about and relying on an applicant’s criminal history. Based upon EEOC’s guidance, employers should evaluate how the specific criminal conduct relates to the duties of a particular position. This generally requires an individualized assessment. For example, does the job you are hiring for contain factors that directly relate to the applicant’s conviction?  Look at the facts and circumstances surrounding the offense or offenses, such as how long it has been since the conviction(s), rehabilitation efforts, and prior employment or character references. Remember to check both state and local laws for additional guidance on relying on criminal history when making employment decisions. 

     Federal law requires employees to receive their last paycheck by the next scheduled payday. Many states have established shorter timeframes, such as at the time of termination. Employers must comply with these payroll laws even if the individual has yet to return company equipment that may have been borrowed. How do you overcome this problem and still get your property back? Well, whenever possible, make it a point to reclaim company equipment prior to the employee’s departure. Depending on the state, employers may be permitted to make limited deductions from a non-exempt employee’s final paycheck for unreturned equipment. There are provisions, however, such as that the deduction may not bring their pay below the applicable minimum wage. Furthermore, it should not reduce any overtime pay due the employee. Importantly, some states expressly prohibit any deduction for unreturned equipment. Be sure to check with your state for applicable laws. If the employee is classified as exempt, the employer is strictly prohibited from reducing the employee’s final pay for any unreturned equipment. Review applicable law or consult legal counsel before withholding any monies. 

     The EEOC states that rules requiring employees to speak only English at work violates federal law unless it is reasonably necessary to business operations. Policies that require employees to speak only English in the workplace at all times, including breaks of any kind, are not thought to be reasonably necessary. Any employers who believe an English-only policy is reasonably necessary may want to consult an attorney prior to implementing it. It may be permitted to apply the policy in limited circumstances and only when it is needed for the employer to operate its business safely and efficiently, while keeping all employees safe.

     It’s important to remember that under the Fair Labor Standards Act (FLSA), non-exempt employees are entitled to overtime pay at a rate of one and a half times their regular rate of pay for all hours worked over 40in any workweek. Some states have additional overtime requirements. If a non-exempt employee has worked overtime, he or she must be paid at the overtime rate regardless of whether the overtime was pre-authorized or not. Having a policy that no overtime work is permitted without prior authorization doesn’t release any employer from this requirement. However, employers may subject the employee to disciplinary measures due to such an infraction, but in no case may any employer withhold overtime pay. 

     Off-duty activities are off limits. Several states prohibit employers from taking action against any employee or applicant who uses tobacco or engages in legal off-duty activities. However, in states that don’t have these kinds of laws, it is not considered a best practice to have such an off-duty policy. Of course employers may prohibit smoking and the consumption of alcohol while on company property and working as these become safety-related concerns. Employers may also offer resources and incentives to help smokers quit using tobacco should they wish to do so. Many people struggle with giving up tobacco, so the offer of help may be a positive thing. 

     Do you have a safety incentive program? Be careful, because these types of incentive programs may violate the Occupational Safety and Health Act. Under OSHA employees have the right to report a workplace injury. A poorly crafted safety incentive programs could discourage workers from reporting injuries out of fear they would jeopardize the bonus for themselves and their fellow coworkers.  Instead, offer incentives that promote worker participation in safety-related activities. Focus instead on things such as incentives for identifying hazards, making suggestions for safety improvements, participating in safety committees and trainings, or assisting in investigations of injuries, incidents, or “near misses.” Encourage everyone to be safe together, to help one another, and to report anything that is out of sorts, including tools and equipment that may need repairs or replacement. Encourage your staff to learn about PPE and how it benefits everyone. Work safely together as a team.