TT&S Weekly (11/11/19)
Topic of the Week Harassment - Employer Policies
- Does an employer have to follow its own handbook or personnel policy?
- My employer has a general policy, but it only seems to affect certain employees- is this legal?
- What should I do if I have a concern regarding my employer’s policies?
Some state courts have held that an employer handbook is a contract unless the handbook expressly states that it is not a contract. If the handbook is deemed to be a contract by the court, then the employer can be liable for breaching that contract if it fails to follow the procedures outlined within the handbook. For example your handbook might state that employees “will” rather than “may” receive a severance package- in the past this has been interpreted to create an obligation on behalf of an employer to provide a severance package for its employees.
Additionally handbooks can play an important role in wrongful termination or discrimination suits. If an employers handbook or personnel policies provide procedures to be followed in terms of employee discipline or termination, those procedures should be followed and applied evenly. For instance, if an employer applies the policies discriminatorily, such as following the handbook for men but not for women, this can be used as evidence of discrimination. Another possible claim an employee may bring if an employer fails to follow discipline or termination policies is a breach of contract claim.
State laws vary in evaluating whether a handbook is a contract. You should consult your own state's law to determine if it considers handbooks to be contracts between employers and employees. Additionally, it is important to realize that an employer can generally change its handbook or personnel policy at anytime, so if your employer sends out a personnel policy update be sure to read through it to be aware of your rights.
My employer has a general policy, but it only seems to affect certain employees- is this legal?
It is true that sometimes facially neutral policies (policies that are applied to all employees equally and are not expressly illegal) can sometimes violate the law.
For example, a policy may prohibit promotion when an employee takes off four or more consecutive weeks during the year. A policy like this would tend to discriminate against women who took time off due to pregnancy or employees who were sick or otherwise temporarily disabled. Individuals negatively affected by a policy like this could potentially file a lawsuit against their employer.
What should I do if I have a concern regarding my employer’s policies?
Possible concerns regarding employer policies include, but are not limited to:
-I was fired for not following my employer’s policy…
-My employer has policies in place, but its failing to follow its own policies…
-I think my employer has an illegal policy…
Generally, you may want to first seek a remedy through any grievance procedures your employer already has in place. This may be the most immediate way to address your concern and some legal claims require that this step be completed prior to filing a claim. If internal grievance procedures are inadequate or ineffective to resolve the issue, you may have access to a legal remedy. While this FAQ may serve as a general starting point to find out if you have a legal claim in a matter concerning your employer’s policies, due to the fact-specific nature of such claims, as well as differing state laws, it is important to consult a lawyer in your area to determine if you are entitled to any legal remedy.
Thought of the Week
"Requiring former employees to contact the company’s legal department before speaking up is a huge barrier. If NBCUniversal is truly committed to letting survivors and employees speak out about sexual harassment at the network, it should simply release them from their non-disclosure agreements. There is no reason to place the burden on those who choose to speak to reveal themselves in advance to NBCUniversal. This is an example of the burdens that perpetuate fear and silence, no matter what new policies and trainings may say."
–Tina Tchen, the incoming president and CEO of the Time’s Up organization
Weekly Comic by Jerry King
Blog of the Week
Top Five News Headlines
List of the Week
from Hiscox
2018 Hiscox Workplace Harassment Study
- Among survey respondents 35% of workers feel they have been harassed at work. Among women, the figure is even higher at 41%.
- Among survey respondents who said they were harassed, 78% said their harassers were men, and 73% said they were harassed by someone who was in a senior position to them in the organization.
- Over half (53%) of those who experienced harassment didn’t report it because they feared a hostile work environment.
- Nearly as many (46%) cited a fear of retaliation (such as being terminated from their job) as a top reason for keeping quiet.