What is an employee handbook?
It is an opportunity for an employer to address the policies and procedures of its business. The employee handbook is a guideline for employee compliance and also provides notice and expectations for employees. Specific subjects typically included in an employee handbook are leaves of absence, overtime, holidays, payroll, retirement programs, worker’s compensation, and harassment. It is important to address the ends-and-outs of your business. In other words, you can answer questions of your employees before they are asked as well as protect your business with the right set of policies.
While these long documents may often get left in an employee’s trunk or drawer at work, they are one of the first and most important documents involved when a disputed arises with your employees. It’s very important that you are deliberate in the drafting of your employee handbooks and in how you are getting them signed by your employees. As you will see, be careful with premade handbooks because South Carolina has particular laws and your business has particular situations that need to be complied with for your handbook to have maximum effect in protecting your business.
At-Will Employees
South Carolina is an employment “at-will” state. This means that an employer may choose to hire, or fire, an employee for any reason, as long as that reason is not illegal. An employee may not be discharged for any legally prohibited reason, such as age, sex, race, or disability. Therefore, employers have broad powers in terminating an employee. However, an employee handbook can impede that ability by creating an implied employment contract, which would alter the “at-will” relationship.
When I am reviewing a handbook for a client, I can tell whether it is on the right track just on the first page. If it’s drafted by an employment lawyer, you will see a (rather obnoxious) disclaimer that is required by the state legislature. This is a state law and most downloadable handbooks fail to comply and therefore fail to protect your business. What this disclaimer does is preserve the at-will status of your employees. In other words, it should prevent the employee handbook from creating a contract with your employee, which would limit your ability to terminate that employee.
According to S.C. Code Ann. 41-1-110, an employer may issue written policies without impacting at-will employment if the employer inserted a conspicuous disclaimer in the handbooks stating that employees are “at-will”. It also prescribes where they must be and how to sign. Essentially, in order to protect employer issued documents, the document must have a conspicuous disclaimer in all capital letters and the employee’s signature must appear below the disclaimer.
Customizing Your Handbook
When drafting an employee handbook, it’s important to recognize the particular needs of your business and fit those needs into the framework of South Carolina law, and applicable federal law. Your handbook can and should reflect your business philosophy and goals, as well as the size, structure, and estimated growth of your business. You can explain how time off is treated, what the dress code is, social media, and more or less capture your company culture.
The employee handbook is meant to serve as a resource for current and future employees, and address rules, policies, procedures, and benefits that may emerge throughout an individual’s course of employment. For example, many employment laws do not apply until your business has a certain number of employees. Title VII and the Americans with Disabilities Act only apply to businesses with 15 or more employees, and the Family Medical Leave Act applies only to businesses with 50 or more employees. Handbooks should further include policies that reference all forms of discrimination and harassment in the workplace. It’s vitally important that you provide a procedure for employees to report such behavior. Substance abuse, alcohol, and drug prevention programs should also be addressed, and addressed in a manner that complies with Section 41-1-15 of the S.C. Code.
Conclusion
For many of my clients, the process of drafting a customized employee handbook serves as an employment audit to review policies such as wages, social media, harassment reporting procedures, and much more. It’s important that employers review current employment laws in this manner to ensure compliance and remind themselves of their own obligations as well as provide a clear resource for its employees. The employee handbook is an important business tool for employers, and therefore, it is best to consult an attorney with experience in South Carolina employment law.
About the Author
Wesley Henderson is an employment attorney with Henderson & Henderson law firm in Charleston SC. He focuses on helping businesses navigate their legal hurdles to help them succeed in the marketplace. Wesley has experience with a variety of personnel and employment law matters. He can be reached by email or by phone at 843-212-3188.
