By Ann Marie Zaletel and Casey McCoy

Leaves are turning, days are shortening—the classic signs that winter is on its way.  With winter comes cold and flu season.  Much like flu shots often protect us from coming down with the flu, when done right employee handbooks can help protect employers legally.  

Here are some common symptoms that your California handbook is due for a checkup this flu season:

Symptom No. 1:  Overly Broad Handbook Disclaimers 

Employers attempt to shield themselves from implied contract claims by including a handbook disclaimer that “this handbook is not a contract.”  This language actually may have the opposite effect.  In one California case, a statement in an employment application that employment was at will failed to preclude a contract claim because the application also included broad “no contract” language. 

Similarly, a broad disclaimer that the employer has the right to unilaterally change policies can undermine the at-will employment relationship if the employer does not carve out its at-will employment policy from its right to revise.

Prescription:    Revise the disclaimer to provide that nothing in the handbook is intended to create a contract of continued employment, employment for a specified term, or any contractual or legally enforceable obligations on the part of the company.  Additionally, specifically exclude the at-will employment policy from any reservation of the employer’s right to revise handbook policies.

Symptom No. 2:  A Too Narrow Anti-Harassment Policy

An anti-harassment policy is a must-have for all employee handbooks.  It helps employers defend against harassment claims when an employee fails to follow the employer’s internal processes for reporting potentially harassing conduct.  But anti-harassment policies may have the opposite effect if focused exclusively on sexual harassment.  An even more common mistake is to prohibit only unlawful harassment.  An employer will want to be informed of any unwelcome conduct based on a protected status (even if that conduct is not sufficiently severe or pervasive to constitute unlawful harassment), so that it promptly can stop the conduct before it rises to the level of unlawful harassment.

Prescription:    Your anti-harassment policy should prohibit all unwelcome conduct based on a protected status, such as race, national origin, religion, and disability.  Such a policy also should undermine a plaintiff’s argument that any conclusion you might reach that an employee violated your policy amounts to an admission of unlawful conduct.

Symptom No. 3:  A Rigid Dress and Grooming Policy

A rigid dress and grooming policy may subject an employer to discrimination and failure to accommodate claims.  For example, as we’ve recently blogged, amendments to the FEHA have clarified that religious beliefs, observances and practices extend to religious clothing, dress, and standards of grooming, including head coverings, facial and body hair, and religious jewelry.  Thus, employees may be entitled to religious accommodations from their employers’ official dress code policies.

Prescription:  Include a provision in your policy that provides that reasonable accommodations will be considered in accordance with the ADA, Title VII, the FEHA, and any other applicable laws requiring reasonable accommodation for medical, religious, and/or other reasons.

Symptom No. 4:  A Maximum Leave Policy

A  maximum leave policy that purports to limit the total amount of leave to which an employee is entitled (e.g., a one-year cap) is a common handbook problem.  The EEOC continues to devote significant resources to litigating systemic cases attacking maximum leave policies.  Under the FEHA (and under the ADA), a disabled employee may be entitled to additional leave as a reasonable accommodation if the additional leave will allow the employee to recover and return to work.

Prescription:  Maintain a flexible leave policy that provides that each situation will be evaluated individually.  Talk to your trusted legal advisor for assistance in revising or replacing any maximum leave policy.  

Symptom No. 5: A General Promise To Comply With Meal And Rest Period Laws

Despite the California Supreme Court’s Brinker decision, California class action lawsuits alleging meal and rest period violations are alive and well.  And California courts continue to certify meal period classes based on the facial invalidity of the employer’s meal and rest period policy.  In this environment, a general policy statement that the company will comply with California’s meal and rest period requirements is woefully inadequate.

Prescription:  Adopt a meal and rest break policy that accurately explains California meal and rest break laws.  Such a policy should take into account the California Supreme Court’s Brinker decision and address (among other things) the number, timing, and duration of meal and rest periods as well as steps that employees must take if they are not permitted to take a rest period or provided with a meal period as set forth in the policy.  And, make sure rest period policy language accurately sets forth the California requirement that employees be able to take a ten minute rest break every four hours of work “or major fraction thereof.”