How to Write an Employment Policy
Author: Douglas S. Zucker, Bauch Zucker Hatfield LLC
It is important for employers to document policies and procedures in writing to ensure consistency and to make sure that all employees and supervisors are familiar with their rights and obligations with respect to the employer. Continuity and consistency in understanding and application of policies are essential to protect employers from employment-related claims of discrimination and breach of contract. In preparing any employment policy, it is important for an employer to apply the following steps:
Step 1: Determine the Purpose and Intention of the Policy
The initial step in developing any employment policy is to understand exactly why the policy is being developed - what problem, issue, law, statute, regulation, or new undertaking is the policy intended to address. Employers should develop a brief policy statement of one to two sentences and share it with the individual requesting or recommending that the employer develop a policy on this topic, to ensure that the individual initiating the policy and the individual drafting the policy have the same understanding of the reason for the policy.
If the policy will have a financial impact, either as an additional cost or cost savings, the individual initiating or developing the policy must calculate the value of that impact. If the policy imposes additional costs for the employer, then the initiator should obtain the necessary budgetary approvals before investing a lot of time researching and drafting a new or updated policy. If the policy will result in cost savings, then the value of those savings can be used to help sell the policy to senior management, whose approval and support ultimately will be important to the success of the policy.
Step 2: Assemble All Prior Writings and Practices on the Same or Similar Topics
Before developing or revising a policy, it is essential to understand any prior declarations by the employer on the subject of the policy and on any related topics. Sources of prior declarations of employer policies or practices include:
- Pre-existing policies;
- Employee handbook or manual provisions;
- Promotional materials (particularly for policies regarding benefits and events or activities); and
- Any employer-wide emails or statements from high ranking employer officials or managers with responsibility in the subject area that the policy will cover, such as a benefits manager or a payroll administrator.
Step 3: Obtain Information and Input from Relevant Stakeholders
In addition to written or oral declarations that document pre-existing policies, it is important that the employer to speak to those members of the organization involved in implementing the subject matter of the policy to determine the current practices, and how practices may have changed or evolved over time. Interviewing relevant stakeholders also helps to identify problems or issues encountered or identified in the past so that these problems can be addressed or avoided in the new policy and not repeated. Obtaining input from employees who will have direct responsibility for implementing the policy can elicit important information about what should be included in or excluded from the policy. Getting input from relevant stakeholders can also help engage these employees in the policy development process, so that they take some ownership of the final policy and are more likely to understand the policy and to implement it as the employer intended.
Step 4: Conduct Research to Determine Status of the Law and Identify Trends
Before drafting a policy, employers should conduct research to determine legal obligations and identify relevant trends in the subject area. Given the abundance of federal, state and local statutes, regulations and rules covering the employer/employee relationship, and the ever-evolving interpretations of these laws by courts, judges and juries, it is essential to ensure that all new policies are legally compliant. Consultation with relevant and reliable internet sources, professional organizations, professional colleagues and/or legal counsel with expertise in the field, will help an employer to identify these legal requirements and trends, particularly on new and emerging areas, such as social media and the workplace, and to insulate the employer from unnecessary legal exposure.
Step 5: Review Collective Bargaining Agreements and Individual Contracts
Prior to drafting a policy, employers should review collective bargaining agreements and individual contracts with employees. In a unionized organization, collective bargaining agreements often contain provisions that impact or limit an employer's right to change or modify certain benefits or practices, so it is important to review collective bargaining agreements prior to drafting a new policy. Individual employment contracts also may impact proposed policies.
Step 6: Draft the Policy
The next step is to draft the policy. In doing so, employers should keep the following in mind:
- Layout and appearance. It is a best practice to develop a standardized format for all policies and procedures. A uniform appearance and layout makes it easier for employees to recognize a document as a policy and to understand how to read and interpret it. Using a standardized format also saves time and energy the drafter does not have to decide questions of layout or content, and because certain aspects of the format will be consistent across many or all policies.
- Language. The selection and organization of words in a policy significantly affects how employees and supervisors understand, interpret and apply the policy. Employers generally should draft policies in precise terms and avoid ambiguous language, which leave the policy subject to varying interpretations. Sometimes, employers may want policy language to be somewhat vague in order to give the employer flexibility in implementing the policy, such as in a disciplinary action policy. However, employers should aim to draft policy language that maximizes flexibility while limiting ambiguity. The ultimate goal of policy language should be that the only reasonable interpretation is that management has the right to make key decisions on policy implementation.
Step 7: Comply with the National Labor Relations Act
The National Labor Relations Board (NLRB) Office of the General Counsel released a report on March 18, 2015 providing guidance to union and non-union employers on workplace rules and employee handbooks. The report attempts to provide clarity on recent NLRB decisions addressing whether certain rules would be reasonably construed to prohibit or restrict employees from engaging in concerted activities protected under Section 7 of the National Labor Relations Act (NLRA), such as discussions of terms and conditions of employment and union organizing. In doing so, the report provides lawful and unlawful examples of the following rules and policies frequently at issue: confidentiality rules; employee conduct/professionalism rules; third party/media communications rules; logos, copyrights and trademark rules; photography and recording rules; rules restricting employees from leaving work; and conflict of interest rules. The NLRB reminds employers that the mere maintenance of a work rule may violate the NLRA if it has a "chilling" effect on an employee's protected activity. Based on the General Counsel's recent report, employees are permitted to engage in communications and conduct in connection with protected concerted activity and work rules that have a chilling effect on Section 7 activity may be found unlawful. As such, in drafting and/or amending any workplace policies or provisions to be included in an employee handbook, an employer should be particularly careful not to infringe upon the employee right to engage in protected concerted activity.
Step 8: Elicit Feedback on the Draft Policy
Before releasing a new policy for final approval, it is best practice to share the draft with the individual who initiated the policy to ensure that the policy meets the original goals and intentions for which it was developed. It also is advisable to share the draft policy with the individuals who will be responsible for implementing it to make sure that the policy meets the intended objectives and that it is understood as written, and so that it is more likely to be implemented properly.
Step 9: Revise and Finalize Policy and Obtain Necessary Approvals
As with any business document, it is important to proofread the policy carefully before finalizing it. Missing words can impact and distort the purposes of a policy, particularly words such as no or not which significantly affect the meaning of a sentence. Likewise, typographical errors in a policy or other published document impact the overall credibility of the document and of those who prepare and distribute it.
Most employers have a progression of who needs to approve policies, which may be the most senior HR manager, the head of a division, or the president. Getting the approval of senior level management gives added credibility to the policy and also helps to get senior management's support and investment in the policy, which is important for successful implementation. If the policy requires an additional expenditure, ensuring budgetary approval prior to implementation is essential.
Step 10: Distribute Policy and Obtain Acknowledgement and Consent
Employers should ensure that the policy is widely distributed to all employees who will be subject to it. If the policy imposes obligations on employees, as opposed to providing a benefit, employers should consider requiring employees to sign an acknowledgement of receipt and understanding, and agreeing to abide by the obligations the policy imposes.
If the policy makes significant variations from existing policies or practices, distribution of the policy also should include a brief explanation of the new policy and what it means. When implementing difficult or innovative policies or policies, which impose obligations upon employees, employers may want to consider conducting employee training to educate employees about the new policy and the obligations it imposes.