By: Matthew M. Van Nuland, Attorney at Hager, Dewick & Zuengler, S.C.
Business owners face different opportunities and challenges every day. As a business owner, you may have employees that present opportunities to take your business to the next level, while at the same time have employees that present challenges and are holding your business back. Thankfully, there are things you can do to minimize the challenges related to your employees, so you can focus on the opportunities. Two things you can do to minimize the challenges are (i) having an Employee Handbook and (ii) ensuring you maintain proper employee records. If your company has employees, but no Employee Handbook, now is the time to have one prepared. If your company has an Employee Handbook, but no policy regarding employee records, now is the time to create a policy. These two items can have a substantial impact on your company’s success and growth.
An Employee Handbook should be custom tailored to your company and industry. Form documents, although possibly less expensive on the front-end, are often more expensive in the long run. A good Employee Handbook should serve as an informational tool describing your company’s policies, procedures and the expectations of your employees.
Your handbook should be drafted to avoid legal problems, most importantly avoiding the chance of it being interpreted as a legal contract. Business owners and employees would be surprised by what Wisconsin courts can interpret as a contract or a guarantee of employment. To achieve this end, your handbook should contain a clear statement that the employment relationship is “at-will” and that it does not constitute an express or implied employment contract. If the employment relationship is “at-will”, the employee may be terminated at any time, for any reason or for no reason, so long as the termination is not based on discrimination protected by statute. The employee is also equally permitted to resign from employment at any time and for any reason. Employee Handbooks that lack a clear “at-will” employment statement are ripe to be interpreted as a binding contract.
Furthermore, because the nature of your business and the requirements of your employees constantly change, your Employee Handbook should state that it does not constitute a guarantee of operating procedures, disciplinary procedures or terms of employment, but is a set of guidelines from which your company can deviate as it deems necessary. Your handbook should reserve the company’s right to change, rescind or adopt new policies which will be binding on all employees, even those who signed a previous version.
An Employee Handbook should also address or include the following: (i) harassment policy, (ii) equal employment opportunity policy, (iii) leave of absence policy, (iv) pay and overtime provisions, (v) description of benefits, (vi) disciplinary policies and procedures and (vii) grievance policies and procedures. Your company’s handbook needs to describe your company’s policies, procedures and the expectations of your employees in a manner that is comprehensive, clear and understandable.
Finally, no matter how perfect each and every clause of your Employee Handbook is drafted, none of it will matter if you fail to receive and retain a signed acknowledgment from each employee. The acknowledgment should state that the employee has received the handbook, had an opportunity to review the handbook and had an opportunity to seek the advice of legal counsel.
Like an Employee Handbook, items missing from your company’s employee records can cause problems. The State of Wisconsin provides some guidance as to what must be included in an employee file. According to the Wisconsin Department of Workforce Development, employers must keep the following in their employee records: (i) name, (ii) home address, (iii) date of birth, (iv) dates employment began and ended, (v) total daily and weekly hours worked and (vi) rate of pay for each payroll period, but this list is not exhaustive of all items the State may require your company to keep, nor is it inclusive of everything you should keep in your employee records. In addition to the required items, you should consider including notes of any verbal reprimand, copies of all written reprimands and employee acknowledgments of all reprimands. These items can be vitally important if a former employee, even a former “at-will” employee, files a lawsuit claiming an unlawful termination. Do not forget, your employee records should include, without exception, the signed Employee Handbook acknowledgement discussed above.
By taking the time to do these things now, you can minimize your business’ challenges and focus on the opportunities.