Annual Review of Employment Handbooks

James H. GilliamBrownWinick

666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510

Telephone: 515-242-2446Facsimile: 515-323-8546

E-mail: gilliam@brownwinick.com

Employment at-Will

The employment relationship may be terminated at any time by either party for any reason or no reason at all.

Iowa courts still recognize the Employment at-Will Doctrine

Employment at-Will acts as a presumption which can be overcome by evidence that the parties have entered a contract to the contrary.

Classic Example: Union Contract

“The Employer may terminate an employee’s employment only for such reasons that constitute just cause.”

Many employers in the past adopted policies to assist in preventing unionization.

Unintended Consequence

Courts enforced promises in employee handbooks as if the handbook was a contract.

Tip No. 1

Disclaimer: Nothing in this handbook is intended to create a contract of employment.

Tip No. 2

Disclaimer: A contract of employment may only be created, in writing, by the company president.

Tip No. 3

Receipt: By my signature below, I acknowledge receipt of the handbook and that I have had the opportunity to review and become familiar with its contents.

Handbooks in Unemployment Claims

Misconduct:

• Willful and wanton disregard of employer’s interest

• Deliberate violation or disregard of standards of behavior

Unemployment judges like to see evidence that employee knew the standard of conduct and the consequences of a violation.

Tip No. 4

• List the standards of conduct.

• List the consequences.

Employee Handbooks and Wage Claims

FLSA: Improper deductions can defeat “salary basis” test

Iowa Wage Payment Collections Act

“Good faith” failure to pay may prevent liquidated damages

Tip No. 5

Safe Harbor: Policy that prohibits improper deductions, creates a complaint mechanism, and reimburses for improper deductions.

Employee Handbooks and Hostile Environment Claims

Ellerth/Farragher: Employer must show it exercised care to prevent/correct harassment and plaintiff failed to take advantage of procedures.

Tip No. 6

Policy that prohibits harassment and provided clear opportunities for an employee to complain.

Employee Handbooks and the Family and Medical Leave Act

FMLA requires a policy for all employers subject to FMLA.

Tip No. 7

FMLA policy should clearly indicate “FMLA year” and whether paid leave can be used consecutively or concurrently.

Employee Handbooks and Drug-Testing

Under Iowa law, no testing permitted without a written policy.

Tip No. 8

Identify circumstances under which Employer reserves the right to test and consequences for violations.

Employee Handbooks and Employee Privacy

Expectation of Privacy

• Parking lots

• Lockers

• Email/computer files

• Telephones

Tip No. 9

The Employer reserves the right to search/monitor …

Emerging Issues

• Weapons Possession

• Social Media