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EMPLOYERS | Managing and Retaining Employees
Employee handbooks and work rules
If not drafted carefully, handbooks and rules can be and have been interpreted by the courts to create implied contracts with employees. With the benefit of legal advice, an employer can minimize the risk of this through the
inclusion of a clearly written and conspicuously placed and printed disclaimer, stating that the handbook is only intended to present guidelines and is not intended to create an enforceable contract.
If an employer wants to use a written agreement, it should stand alone and not make the handbook and work rules a part of the contract.
Many employers use probationary periods to give them time to evaluate a new worker before giving them full-fledged employee status, but the term “probationary period” might imply that the worker becomes a “permanent” employee
once the period is over. Having new employees serve a probationary before attaining “permanent” status is inconsistent with the at-will nature of the employment relationship.
If an employer does not want to lose the at-will aspect but wants to apply a waiting period to new workers before they can qualify for insurance and other benefits, then it should be established as a waiting period rather than
a probationary period.
In any event, even if a worker is classified as a probationary employee, he or she still cannot be discharged in violation of the anti-discrimination laws and other limitations on the at-will doctrine.
Formal evaluations have the benefit of creating a record of the employee’s performance and a justification for decisions about promotions, raises and other decisions.
To be effective, they should be communicated to the employee and the employee should be required to read the written evaluation and sign an acknowledgment that he has read it and understood it.
On the other hand, if formal evaluations are to be used, care must be taken in conducting and recording them so that they do not increase the likelihood of liability following a discharge. For example, a poor evaluation that includes
some favorable comments might create confusion about why the employee was discharged at a later date and if the employee claims that the discharge was discriminatory, the confusion may incorrectly create the impression that
the reason for the discharge was a pretext.
Evaluations must be conducted, recorded and used in a nondiscriminatory manner. So, any job actions taken as a result of a performance evaluation must be done without violating any of the anti-discrimination laws and regulations.
Investigations and discipline
Use of polygraphs and other lie detectors: The Employee Polygraph Protection Act of 1988 allows the use of polygraphs in testing current employees only in specified circumstances and carefully controlled conditions and only to investigate conduct that has caused economic loss to the employer’s business.
As with the hiring decision, investigations and discipline are subject to the limitations established by the anti-discrimination laws.
Federal and state laws prohibit any form of adverse employment action on the basis of the employee's
reporting of violations of law in the workplace
opposing a discriminatory practice
filing a complaint
applying for and receiving benefits or an accommodation under workers' compensation, medical leave or disability-related laws
testifying , assisting or participating in an investigation, proceeding or hearing
refusing to perform illegal acts
Also, to avoid potential liability for defamation, be careful not to allow the release of any information or statements about a disciplined employee.