Civil Litigation: The Ever-So-Handy Handbook

By law, employers are required to provide employees with an ever-increasing amount of information, policies, notices, and acknowledgments throughout their employment. In New York these include but are not limited to a sexual harassment prevention policy, pay notices, airborne infectious disease exposure prevention plans, leave eligibility notices, and various other policies.

In some instances, the law only requires that employers post certain notices and policies instead of providing a written copy. These notices must be posted “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.” But, in an era where remote work and social distancing are still widely popular, it is becoming more and more difficult to pinpoint what places would be considered “easily accessible and customarily frequented.” As such, providing a handbook is inching away from being an employer’s choice and toward becoming a necessity.

The number of notices that need to be provided to employees is growing almost annually. For instance, effective May 7, employers will now be required to provide written notice to employees of any electronic monitoring systems at work including email, website, and phone monitoring. Employers must receive a written acknowledgment of receipt of the electronic monitoring policy from each employee. The language in the statute is broad enough to apply to most employers, providing an exception only for monitoring “solely for the purpose of computer system maintenance and/or protection.” Pretty soon, certain private employers will also be required to provide eligible employees with informational materials about automatic enrollment in New York State’s retirement program. The program covers all employees, (including part-time employees) in the state, who are at least 18, and earn wages from an employer who does not otherwise offer retirement benefits to that employee.

A handbook is also … well, handy. A handbook can be a useful way to compile all of this necessary information. Conceivably, an employer could hand an onboarding employee a stack of separate policies and acknowledgments. However, the likelihood of an important notice being forgotten or misplaced (or an employee claiming they never received that notice during future litigation) increases exponentially. Without a handbook, all of these numerous notices and policies would still have to be presented to and, in some cases, signed by employees.

Not only is a handbook a useful tool for providing legally required notices, but it is also a great opportunity to consider and artfully craft policies that protect employers. Recently, for example, New York Labor Law has made it illegal to discriminate against an employee’s use of cannabis outside of the workplace, outside of work hours, and without the use of the employer’s equipment or property. However, an employer may still prohibit the use of cannabis during meal or break periods and prohibit possession of cannabis at work or in a company vehicle. A company can also consider whether marijuana should be allowed at company events where other substances, such as alcohol, are being served. A written policy is important to reflect these company policies and to put employees on notice of workplace expectations.

A handbook is especially important for an employer because the Labor Law often sides with the employee when certain policies or agreements are not written out. An example is whether the employee is entitled to a vacation payout upon separation from employment. Employers and employees should carefully review the vacation and paid time off policies to determine whether an employer must pay out accrued, unused vacation time when the employee leaves or is terminated. In the absence of a policy, the employer generally must pay the employee for the earned, unused vacation time. If an employer fails to do so, they may be subject to civil penalties.

One of the best things about a company handbook is often both employers and employees discover many things that “they didn’t know that they don’t know.” In other words, there is so much information relating to laws and regulations that individuals often do not realize how much knowledge they are missing about the applicability of various labor and employment laws. Although this much additional information can be intimidating, it also allows employers to ask their legal counsel important questions to preempt future litigation. Furthermore, handbooks provide a valuable asset to human resource departments and employees concerning their legally protected rights and eligibility requirements for certain benefits, such as paid family leave.

On the other hand, handbooks can be risky business. If the handbook is not regularly updated to comply with the law, the policies may become outdated and, in some cases, unlawful employment practices. For example, many handbooks contain provisions about discipline for excessive absences or perceived job abandonment if the employee does not show up to work. However, since 2021, New York Paid Sick Leave provides job-protected sick leave to employees. All private-sector employees in New York State are covered, regardless of occupation or employment status, including part-time and overtime-exempt employees. An employer cannot retaliate against an employee in any way for exercising their right to use sick leave. With this change in the law, the job abandonment provisions are antiquated and unlawful, unless they are for a period over and above the employees’ accrued New York Sick leave.

Similarly, some employers unintentionally leave in provisions concerning discipline for insubordination, which can be viewed as chilling towards protected concerted activities, such as discussing wages that are protected under the National Labor Relations Act. Other provisions about discipline could be viewed as discouraging complaints, which could run afoul of New York’s recently expanded whistleblower protection laws. These risks come with a quick fix though, insofar as they can be easily avoided with the right guidance or review from legal counsel.

A handbook is so much more than the terms and conditions of service that most of us blow past on websites. For employees, the contents of a handbook contain a plethora of useful information pertaining to their rights, protections, and employee benefits. As for employers, a handbook can be a powerful shield for liability, a roadmap to employment laws, and an excellent tool for complying with legal notice requirements.

Stephanie B. Hoffmann is an Associate in Underberg & Kessler LLP’s Labor & Employment Practice Group.