Every higher education institution should have an employee handbook designed to meet its standards for employee conduct and ensure compliance with applicable employment laws. A well-crafted handbook will support the success of an institution’s goals, save administrative time and reduce the risk of legal claims and liability.
Handbooks provide clear expectations for an institution and its employees, as well as a centralized, uniform source of information about employment policies and procedures. This eliminates confusion and reduces conflicts, while supporting consistent enforcement and healthy workplace morale.
Another crucial function of employee handbooks is promoting legal compliance and minimizing risk. Employers are required by state and federal law to provide employees with policy statements on issues such as equal employment opportunity and wage and hour matters. While no amount of judicious drafting can eliminate risk, a well-drafted handbook can reduce the risk of legal claims and liability.
It can be tempting for an institution to implement an off-the-shelf employee handbook, but to do so is a mistake. A handbook only accomplishes its purpose if it is tailored to the needs of the institution and regularly reviewed to ensure compliance with ever-changing employment laws and consistency with the institution’s practices.
In higher education, it is appropriate to have separate handbooks for different employee subsets. Alternatively, institutions may draft a general handbook applicable to all employees along with supplemental handbooks or addenda for various employee subsets.
As an example, institutions should strongly consider maintaining separate or supplemental handbooks for faculty and academic staff and for non-academic staff. Faculty and academic staff are responsible for handling issues such as academic freedom, research integrity, and creation and protection of intellectual property, which are not applicable to non-academic staff. They are also likely to have long- or short-term employment agreements with an institution, while non-academic staff are likely at-will employees or union members who are subject to the terms contained in respective collective bargaining agreements.
Institutions should also consider maintaining a separate or supplemental handbook for student employees, both undergraduate and graduate, as they often require policies addressing their dual roles within their institution. These policies may cover topics such as minimum credit hours required for employment eligibility, tuition remissions, or the Federal Work-Study program.
Notably, employees who are unionized and whose employment relationships are governed by a collective-bargaining agreement require different handbooks to maintain consistency with these agreements. While human resources professionals might find it daunting to adequately provide for several employee classes, high-quality and customized handbooks are crucial to managing risk. Regardless of how an institution divides employee subsets, it should ensure that every employee, including short-term employees, receives a handbook that addresses their circumstances.
Reducing the risk of legal problems
One important concern associated with employee handbooks is that an at-will employee may claim the handbook is a contract, arguably limiting the institution’s ability to terminate the employee or create other contractual obligations. For at-will employees such as administrative staff, include a bold-faced statement on the first page of the handbook or supplement stating the employees in that subset are at-will and the handbook creates no contractual obligations. Handbooks for at-will employees should avoid language that suggests employment is guaranteed, or that employees are subject to dismissal only for reasonable or just cause, as these terms may carry legal implications and could limit an institution’s discretion over its termination decisions. An institution should request that every at-will employee sign a separate statement acknowledging the at-will nature of the employment relationship and that the handbook does not constitute a contract. Finally, handbooks should remain separate from non-competition agreements, confidentiality agreements or anything intended to be an enforceable contract.
As a general rule, handbooks for all employee subsets should be reviewed regularly to ensure legal compliance. However, for employees who are subject to an employment agreement, institutions should be aware that handbook changes may alter the agreement or be ineffective should they conflict with it, depending on the terms of the agreement. Conflicts will typically arise in the context of disciplinary or termination procedures, where an employment agreement may be interpreted to provide an employee greater rights and job protections than provided for in the handbook. It is advisable, in most cases, to specify in the handbook that the terms of an individual contract will govern.
Finally, referring to the handbook regularly as a source of information and guidance for employees will promote compliance with its policies and reduce misunderstandings that may affect workplace morale or even lead to legal action. This is especially true for international and student employees, who may be unfamiliar with typical employment policies and concepts, such as what constitutes prohibited discrimination, appropriate social media use in the workplace or required payroll deductions. For international employees, the handbook may not be written in their primary language, which could cause confusion or inadvertent non-compliance. Emphasize in the handbook and upon hire that any employee with questions or concerns about the handbook’s policies should not hesitate to talk to their supervisor or human resources staff. In some circumstances, handbooks should be translated into multiple languages.
Higher education institutions have much to gain by adopting and maintaining a high-quality employee handbook. When designed properly, an effective policy handbook can protect the institution, support a productive workplace culture, save administrative time and ease concerns of employees by creating clear expectations.
Emily P. Crowley is an employment and business litigation attorney at the Boston-based law firm of Davis Malm. She advises and represents employers in a wide range of employment law matters, including employment agreements, discrimination and harassment, wage and hour claims, and wrongful termination. Courtney A. Simmons is a litigation attorney at Davis Malm, focusing on commercial litigation matters. She also regularly works with the firm’s employment law team.