Many employers need to develop and fine tune their social media policies. See several sets of policies and guidelines at this website from Delaware Employment Law. Connecticut Employment Lawyer presents some helpful guidelines at this post.
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Mike Maslanka, generally a defense lawyer, offers a good point about employee handbooks. All large employers have them. They provide concise, easy-to-read rules. But, employee handbooks generally do not provide a purpose for the rule. They do not explain why a particular rule is necessary, or even better, why the rule provides a benefit to the employee. For example, every handbook explains that the employee is at-will and and can quit anytime. That means, the employer can terminate the employee at any time. Mike suggests employers explain how that benefits both parties. One could, for example, insert a sentence explaining that this flexibility allows either party to seize available opportunities. A handbook could also explain the rules regarding hostile work environment ensure that the best employees are allowed to be productive.
In the US Army, we called this process "task plus purpose." Every mission should provide the purpose of a particular mission to a soldier. If you explain the purpose of a particular task or mission, you provide that soldier the flexibility to react to changing circumstances. For example, do not just tell a captain his men must seize a particular objective. Tell him his troops must secure an objective in support of another attack. That way, if the objective is secured before the captain gets there, he will know that he should react by supporting the attack in some other way. This sort of flexibility allows nimble reaction to a fluid situation. He will not have to wait until he can call the general on the radio to obtain new guidance.
But, this flexibility also incorporates the Captain into the overall strategy. He is not just a cog, but an integral part of the plan. If you bring the Captain and his troops into the overall battle plane, they will treat it as their own plan. Any employee needs to feel part of the overall strategy. They need to buy into the overall plan, not just their small part of it.
But, the disconnect in this scenario is that some employers do not want the employees to feel they have a voice in company strategy. Some employers believe that in giving employees a voice in how to sell product or how best to fabricate machinery, they may seek a voice in other areas, as well. If so, that view is short-sighted.
Americans are generally independent. We will follow orders or direction but we want to know why. Our military forces for 200 years have always needed some degree of explanation before following direction. The new generation, the so-called "millenial" generation, seeks this understanding even more so. An employer who ignores these facets of our national character does so to their detriment.
Those employee handbooks are so pretty and well-written. When your boss said they were binding, you probably believed her. But, no, thoese handbooks are usually nothing more than a guideline. They are not at all binding, if the employer did its homework. See Russell Cawyer's post explaining how to be sure they are not binding. I have talked before about how these handbooks are almost always not binding.
But, of course, the trick the past few years has been how to make sure the overall handbook is not binding but make sure the arbitration clause *is* binding. Employers do love those arbitration clauses.
I talked about how employee handbooks are not a contract. That means an employer does not necessarily have to counsel an employee three times in writing before terminating that employee. But, a question that often comes up is why would an employer want to counsel an employee in writing? The most common reason is unemployment benefits. In most states and certainly in Texas, a worker only gets unemployment benefits if s/he can show s/he lost the job due to his/her own fault. Employers will try to claim the employee was a bad employee. The best way way for the employer to win that argument is to show write-ups documenting alleged performance issues.
And, if an employee accuses the employer of discrimination, written counseling regarding objective, non-discriminatory issues provides an effective defense. In fact, in almost all of my discrimination cases, the employer will dredge up supposed write-ups in some way. I used to firmly believe that employers could not accuse an employee of malfeasance without contemporary write-ups. I formerly was sure no jury would believe an employer was upset about an alleged offense unless the employer could produce contemporary write-ups.
So, imagine my surprise when a case I worked very hard on went to trial while I was serving in Iraq. My co-counsel lawyer told me later we lost the trial probably because the jury believed the employer's claim they were upset with our plaintiff employees even though they had no write-ups at all to back it up. Our clients were accused essentially of not working well with others (when just the opposite was the truth). Yet, they apparently won on that one issue. I am still in recovery from that shock.....
But, it still remains a valid rule-of-thumb: if you want to show a non-discriminatory reason for a termination (or some other adverse personnel action), you better have some write-ups.
All the big employers have them: employee handbooks. They love their handbooks. They spend so much time and money putting them together that they would have to love them. So, of course, many employees come see me and first thing they say is the Employer did not follow their own policy. The employee says it like that simple fact should answer all my questions. But, that fact answers few of my questions.
The fact is most of those employee handbooks are not even close to binding on the employer. This most often comes up when an employee is fired and they complain that they were not written up three times before they were fired. Sure, many employer policies state that an employee must be written up three times before being fired. *But* an employer's policy is usually not binding on the employer. I guess too many employees have sat through too many HR meetings when HR discusses their wonderful and well-thought out employee handbook and how managers are expected to follow these policies.
And, that makes sense. Most policies are designed to give someone a chance to improve. Often, if given the opportunity to improve, most employees do.
But, unfortunately, almost all employee handbooks now come with a proviso that these policies are not binding and do not form a contract. Due to some court decisions in the late 1980's and early 1990's, employers started putting a clause in the handbook that states the handbook is not a contract. So, of course, seeing that clause, the judges found handbooks to not constitute a contract. So, the the employer was not bound by its own handbook, ... that the employer used to love so much.
So, sure, now it is okay to fire an employee with only one written discipline. So, now, it is okay to not try to salvage an otherwise productive employee. But, so long as everyone knows this, there should be no surprises.....
Many times over the years, I have been asked or told that what the employer did was not fair. The employee will tell me how they were fired with just one warning. The employee explains that the employee handbook clearly says the employer must have three written warnings "before they can fire you."
"Well," I reply in my calmest voice, "those employee handbooks are usually not binding." If they contain provisions that this handbook is not binding or is not a contract, then the handbook is not binding. That means the handbook's requirement of three written warnings is not binding. I then go through the various other possibilities regarding how three written warnings might be binding. As usual, none of those other possibilities apply to the average employee. So, yes, I must tell the employee, those requirements for three written warnings mean nothing. They are not binding. "Yes," I add, "an employer can fire you with one written warning, or even with no written warning."
This is known as "at-will" employment." At-will employment is the general rule in Texas and most other states. An employer can fire a person for a bad reason or for no reason. There are only a few very limited exceptions to at-will employment in Texas. At this point, I always add, that at-will employment may not be fair, but it is the law in Texas.
At some point, I explain that the other side of the coin is that an employee can quit whenever s/he wishes. But, somehow, I do not think that is what they wanted to hear......
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