Stupid HR Stuff: If You Don't Want Employees To See The Handbook, You're Doing It Wrong

I hear this all the time: "I was required to sign a paper saying I received the handbook. As soon as I signed, the HR folks snatched up the handbook and didn't let me keep a copy." Or, "I was required to sign saying I received the handbook, but I never actually saw it."

What the heck was the point of that? The whole point of having a handbook is to let employees know what their responsibilities are, where to report issues, how to put in for vacations and sick time, all the stuff you actually want them to do and not do.

If you don't want your employees to see your employee handbook, you're doing it wrong.

I think you'll have a hard time proving some key employment law defenses if you don't actually let employees have a copy of the handbook.

Plus, once you have an employee sign a document that you know and they know is a lie, you lose all credibility with them. Everything you do from then on is a joke. A sham. They won't believe you anymore.

To employees who are asked to sign a document saying they received something they never got, I suggest signing with a notation like, “I was allowed to look at it once but was prohibited from getting a copy.” Or maybe, "I am required to sign this but I have never actually seen the handbook." Having to make a notation like that is probably a bad start to new employment, but it's better than signing something you know is not true.

Whether or not employees got a copy of their handbook comes up in almost all employment litigation. Employers who make a mockery of their handbooks look pretty stupid in court. Not only is your credibility lost with your employees, but you could lose credibility with a judge or jury too.

Dear HR: Stop Telling Employees They Can't Apply For FMLA Until They Use Their Vacation

For about the dozenth time this year, I heard another sob story about an employee who absolutely qualified for FMLA leave, yet was told by HR that they couldn't apply until they used up their vacation or PTO time. This is wrong on so many levels, and it screws both the employee and the employer. So stop it.

Seriously. Stop it.

It screws up the employee because their boss assumes they're taking unprotected leave and so those sick and vacation days used for hospital stays, doctor visits and caregiving responsibilities are held against the employee in reviews, consideration for promotions, and discipline.

It screws up the employer because once the employer knows leave should be covered by FMLA, the employer's legal duties under FMLA kick in:

When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his or her rights and responsibilities under the FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.

 FMLA is mostly about unpaid leave, but employees do NOT have to use all their paid leave before applying:.

Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave.

The consequence to employers can be severe. First of all, the employee may be entitled to more leave than you're legally required to give if you mess this up. Second, if the employee's leave should have been designated as FMLA and wasn't, and you hold that time off against them, you're talking FMLA lawsuits plus disability discrimination lawsuits.

Employees, if you qualify for FMLA (you've been there at least a year AND worked 1250 hours or more in the past 12 months AND there are 50 or more employees of the employer within 75 miles of your work location) then don't believe HR when they say you can't apply. As soon as you know you have a serious medical condition and will need doctor's appointments or medical treatment, apply for intermittent leave. Employers frequently forget about intermittent leave, and it's a good thing. Here's more from the Department of Labor on intermittent leave:

(Q) Does an employee have to take leave all at once or can it be taken periodically or to reduce the employee’s schedule?
When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.
Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement. 

(Q) Can an employer change an employee’s job when the employee takes intermittent or reduced schedule leave?
Employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as not disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee’s regular job.

So, HR folks, can we agree that you'll stop telling employees they can't apply for FMLA until they use their vacation? And employees, feel free to show them this post if they say that.

Stupid HR Stuff: Can Anyone Tell Me the Point In Not Giving Copies of Contracts and Policies?

I’m sure this doesn’t apply to you. You’re one of the smart HR people. You have no dumba-- tendencies at all. But maybe you know someone who does this, so feel free to pass it on.

Noncompete, Confidentiality and Non-Solicitation Agreements

At least once a month, I have to request a copy of a former employee’s noncompete, confidentiality or non-solicitation agreement. Why? Because HR refused to give them a copy when they signed it.

My conversation with the client after they get the nastygram from the company lawyer usually goes like this:

Me: “Do you have a copy of the agreement?”

Client: “No.”

Me: “Why not?”

Client: “They told me it’s their policy not to give copies.”

Me: Pounds head on desk. “Then how are you supposed to know what you’re not allowed to do?”

Client: Shrugs.

Better yet, there’s this conversation:

Me: “Do you remember even signing an agreement?”

Client: “I don’t think I did. They handed me a bunch of papers my first day, but I think I’d know if I signed a noncompete.”

So I ask you, what the heck is the point of withholding the agreement? Better yet, I’m having a conversation right now with a company representative where, even after the nastygram, they’re refusing to give me a copy of the agreement. Apparently, I’m supposed to rely on their good word that: a. my client signed anything and b. they agreed not to work in their profession anywhere in the universe for a year. Hello? Anyone in there? It’s your burden to prove the contract exists, not mine.

If you can’t prove it to me, I assume what you’re saying is BS. Because about 1/3 of the time, employers claim that employees signed agreements that don’t exist just to scare and bully them into not working for a competitor. And don’t even think about forging one. I have a handwriting expert, and I’m not afraid to use him. (Yes, this really happens.)

The point of a noncompete agreement is to tell the employee what they are and aren’t allowed to do. If you don’t give them a copy, they have no idea. So you can’t blame them when they accidentally breach, can you? I’d like to hear you explain to a judge or jury how the employee was on notice of their obligations when you wouldn’t give them a copy. Can anyone say unclean hands?

Employee Handbook

Even better than this idiocy is the company that has the employee sign a paper saying they’ve been given the company handbook. When I ask where it is, the employee tells me they didn’t get a copy. Why? The company considers the handbook confidential. Say what?

The point of the handbook is to inform employees what is expected of them. What’s the point of refusing to give it to them? Are you that financially desperate that you can’t afford the $2.50 to copy it for them? Is it worth risking losing out on the defense you have if they fail to report sexual harassment when there’s a published sexual harassment policy? Do you think having them sign a paper saying they received it will make a difference when the jury hears that you made them sign something that wasn’t true? Why on earth wouldn’t you want employees to understand what conduct is prohibited? Why wouldn’t you want them to understand your absentee, discipline, and dress code policies?

Enlighten Me, Please

Maybe someone out there in HR can enlighten me. Because I see this refusal to make copies as pointless and stupid, maybe even dangerous to the employer and its ability to win a lawsuit down the road.

Some advice if you don’t want someone like me sitting across from a table taking your deposition: make sure your employees get copies of everything they sign, and that they understand what they’ve agreed to. Otherwise, how can they possibly do what you want?

Okay. Rant over. For now.