In law school budding lawyers learn a buzz phrase – “oh, that’s hornbook law” (aka “black letter law”). A “hornbook” is like “Cliff’s Notes” for law students and states the most rudimentary and basic recitation of the law so even a novice law student can figure it out. “Handbook” law is not “hornbook law” by any stretch of the imagination.
Handbook law is a phrase we use to describe the complexity of all the employment and labor law contained in a properly designed and drafted handbook. Pulling a boilerplate handbook off the Internet is definitely easy and cheap. The question is, does it comply with the law of the State of California and applicable federal law? More critical, does management understand how to use it?
Creation and Implementation Requires Expertise
Handbook law requires a detailed understanding and practical application of at least the following employment and labor laws (California and federal):
- Wage and hour law, including exempt v. non-exempt status, regular rate of pay, workweek and workday, overtime, meal periods and rest periods, payday requirements, and lawful vacation or paid time off policies
- At-will rule and exceptions to that rule
- Anti-discrimination laws
- Anti-harassment laws
- Wrongful termination laws
- Leave of absence laws
- Labor relations under federal laws, including the right to organize and to engage in “protected concerted activity”
- Privacy laws as it pertains to employee use of property, tools and equipment, including computers and the Internet, and monitoring, either by telephone or audio-video surveillance
- Defamation law as it pertains to employee references
- Workplace safety
- Drug free workplace
- Workplace violence
- Intellectual property laws, including law of trade secrets and confidentiality agreements
- Unfair competition law
- Lawful and enforceable arbitration agreements
A handbook should protect the employer. And not one size fits all. Handbooks should be custom to each business. That’s why if you were to pull one off the internet and read the disclaimer it would suggest that you have a lawyer in your jurisdiction review it. And if there is no such disclaimer? Definitely caveat emptor.
For example, laws kick in at various employee headcounts. Wage and hour, workers’ compensation, payroll withholding, and unlawful harassment law apply even if you have just one employee. The California antidiscrimination law (Fair Employment & Housing Act) kicks in at 5 employees and the federal antidiscrimination law at 15. Various leave laws apply to all employers while others don’t apply until you have 15, 25 or 50 employees. You don’t want to include leave policies that don’t apply to your business in your employee handbook.
And even when you start with a “boilerplate” handbook, which all of us do, one must know when to tweak the language or change policies entirely, depending on the unique operations of your particular business. and the law at issue.
Finally, employee handbooks are to inform your employees of the rules. You don’t have to put every single rule or detail in your employee handbook though. There’s a fine balance between putting in material policies while also reserving employer discretion. Must haves in employee handbooks include preservation of your at-will employment right, notice of key legal entitlements such as rest, meal and recovery periods and leave laws, and things that will help you defend or avoid employee lawsuits such as a prohibited harassment policy, a reasonable accommodation policy, and an integrated at-will agreement.