• The policies discussed below — along with many more — are available as part of CalChamber’s Employee Handbook Creator®.

Introductory Statement

An introduction describes the handbook’s purpose, the employees to whom it applies, sources of additional information, a description of the employment at-will relationship and a statement that the policies in the handbook replace any previously existing policies and practices.

At-Will Statement

Your employee handbook should contain a statement of your at-will employment policy. For more information, see At-Will Employment.

Acknowledgment and Receipt

Require that employees sign and return a Confirmation of Employee Handbook Receipt, which records their receipt of, understanding of and agreement to abide by the handbook’s provisions. Acknowledgment and receipt forms help establish that employees had notice of your policies, expectations and prohibitions. They’re critical to defending against wrongful termination actions by demonstrating the employee’s knowledge and acceptance of the at-will employment relationship.

A California court ruling highlights the importance of employers using well-crafted acknowledgments when distributing new or revised employee handbooks, or even when updating important policies.1 In the case, the company revised its employee handbook, adding an arbitration agreement among other updates, and the employee signed a new receipt and acknowledgment for the revised handbook. When the employee later sued the company for other claims, the company filed a motion to move the case from court to an arbitrator. Reversing the trial court, the appeals court granted the motion, stating that the receipt and acknowledgment form stated on its face that the handbook set out the “terms, conditions, rights, duties, responsibilities and obligations of his employment. And [the employee] expressly agreed he was bound by its provisions.”

• An acknowledgment and receipt form is written confirmation that the employee is agreeing to the rules of the employer's handbook provisions. If there are important policies, terms or conditions of employment that an employer wants employees to abide by - such as codes of conduct, company property use, or rest and meal break policies - then employers should include those in an employee handbook and require the employee to sign a receipt and acknowledgment forms.

Introductory Period

If you choose to have an introductory period during which employees learn their job. Remind new hires that even if you use an introductory period, you’re an at-will employer, and the introductory period doesn’t mean new hires who complete this period are permanent employees, nor does it mean that you’ll only terminate for cause.

If you choose to use an introductory period, define it in terms of calendar or working days.

You also may reserve the right to extend an introductory period, in which case it must be included in your policy, as should information on the impact this extension would have on eligibility for any benefits.

• The use of an introductory period does not permit you to terminate an employee for a discriminatory and/or illegal reason. Document the legitimate, nondiscriminatory reason for any termination.

Harassment, Discrimination and Retaliation Prevention

California law requires you to have a written harassment, discrimination and retaliation prevention policy.5 This is part of an employer’s affirmative duty to create a workplace free from discriminatory, harassing and retaliatory employment practices.

The policy must meet certain legal requirements. You’re required to distribute the policy to all employees and take measures to ensure that employees have received it, such as obtaining and recording a confirmation of receipt. For more information, see Effective Harassment Prevention.

Job Duties

Your company’s handbook should inform employees that job duties may change, by stating that:

• Employees may occasionally be asked to perform work on special assignments in addition to normal job duties
• As an at-will employer, your company reserves the right to change job responsibilities, transfer job positions, or assign additional job duties at any time

Detailed job descriptions should be in a separate set of documents. Because the California Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) requires that you make reasonable accommodations to enable a disabled employee to perform the job’s essential functions, your job descriptions should specify which duties are considered essential. Well-written job descriptions are a critical part of the interactive process necessary to an effective reasonable accommodation process.

Avoid Overly Broad and Restrictive Policies

Employers must be cautious when crafting policies related to employee conduct and communications. Overly broad and restrictive policies may infringe on employees’ rights under state and federal laws to discuss terms and conditions of employment, including wages and workplace safety concerns. If an employer policy could be interpreted as restricting those rights, then the rule may violate state and/or federal laws.

One of the key laws governing workplace policies is the National Labor Relations Act (NLRA), which applies to most employers, even those without unionized workforces. Under the NLRA, a workplace rule or policy is presumptively unlawful if it has a “reasonable tendency to chill employees” from exercising their rights under the law.3 In other words, if a reasonable employee reads the rule/policy and could interpret it to restrict their ability to talk about working conditions or wages or otherwise engage in any other protected activity, the rule is presumptively unlawful. Employers can try to rebut the presumption, but they must show that the rule promotes legitimate and substantial business interests that cannot be accomplished with a more narrowly tailored rule.

Importantly, the National Labor Relations Board (NLRB), the federal agency that enforces the NLRA, looks at challenged employer rules from the perspective of an employee who wants to engage in protected concerted activity but is afraid of violating a company policy and being disciplined or terminated. Consistent with this perspective, the employer’s intent in maintaining a rule is irrelevant. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the rule is presumptively unlawful, even if a contrary, noncoercive interpretation of the rule is also reasonable.

As such, employers must have specific and carefully crafted rules that promote legitimate and substantial business interests while allowing employees to engage in legally protected activities related to improving the terms and conditions of employment.

In general, employers should consider the following when reviewing work rules and handbook policies to comply with the NLRB’s standard:

• Avoid vague or ambiguous language and generic terms;
• Avoid broad categories of prohibited or required conduct;
• Provide specific examples of the types of behavior the policies aim to prevent to provide context;
• State why the policy is in place (i.e., the specific business interests and/or legal obligations the policy promotes) to make clear that the policy is not intended to infringe on employees’ rights;
• Avoid policies that may appear to employees to prohibit protected activities, such as talking about pay and working conditions, or to compel all employees to confine their concerns to management; and
• Use “savings clauses” throughout a document, when a policy might raise a red flag.

Right to Revise

Employers should include a “right-to-revise” policy in their handbook, which states the company has the right to change policies and procedures in its employee handbook. This gives the employer the flexibility necessary for coping with unforeseen and changing circumstances and allows the employer to revise the handbook or alter policies at its discretion. The “right-to-revise” policy also works if an employer chooses to resurrect a written policy after an alternative practice has taken precedent. When revising or resurrecting policies, employers should ensure the following:

• The old policy was in place for a reasonable period of time.
• The employer gives reasonable notice of the change.
• The change doesn’t interfere with any vested employee benefits.

Apply Policies in a Fair, Consistent Manner

Companies that don’t have clear and well-written policies in place run the risk of handling similar workplace circumstances in different ways. Some employers think that’s a good thing because they like having flexibility; in fact, a primary concern about adopting a formal handbook is that doing so limits an employer’s discretion in dealing with workplace issues.