Why your company’s biggest idiot is such a legal threat

So you’ve written an absolute peach of an employee handbook. No policy has been left behind, and all 62 pages are as clear as crystal. You even have the managerial staff read through it to see if any of your carefully written guidelines could possibly be misinterpreted.

Six of your seven managers say, “It’s a masterpiece.”

“Yeah, we understand it all,” sighs the seventh. “But what about, you know … Sidney?”

Ah, Sidney, that one outlier employee who‘s guaranteed to read everything the wrong way—and yet is the one who determines whether your handbook is a success or a possible legal disaster.

Attorney John Alan Doran of the law firm Sherman & Howard represents management in labor law cases and regularly counsels clients on lawsuit prevention strategies. In a June webinar, he described how the “biggest idiot” theory should have you going back over your employee handbook three or four more times before going to press with it. “Courts,” he explained, “think about how a reasonable person would see a policy. The NLRB (National Labor Relations Board) and the EEOC (Equal Employment Opportunity Commission) look at it from the perspective of the biggest dimwit you can imagine.”

That means many of your policies may inadvertently contain language which could be viewed as dissuading such an employee from speaking out about pay or working conditions, or filing a report with a regulator.

The dangers of overreaching with your language don’t end with the obvious suspects: policies on non-solicitation, social media, non-fraternization and civility. You have to also think about Sidney’s chilling influence on:

• Confidentiality clauses. You’re really just trying to warn staff from disseminating trade secrets. But restrictive terminology could make a “biggest idiot” think, “They’re trying to keep me from telling someone at another company that I don’t like my job!”
• Privacy policies. A broad ban on either the recording of conversations or photography on company property might be asking for it, as the NLRB might perceive this as an attempt to keep unflattering images or statements out of regulators’ view.
• Your intellectual property rights. If a worker’s going to whine about his hours on Facebook, you can certainly keep him from slapping your company logo on his post, right? Not so fast. It may be your trademark, but his right to talk about protected matters may trump its use.
• Agreements about investigative confidentiality. It’s only natural to tell employees not to reveal what they reported to those leading an internal investigation. In the NLRB’s view, however, that’s perhaps meant to discourage protected forms of dissent.
• Hiring exclusions based on criminal history or poor credit. Don’t forget that along with histories of extended unemployment, these dings on someone’s record are often viewed as inherently discriminatory toward minorities.

That’s a lot of landmines. No wonder Doran offers this satirical example of a handbook introduction that some secretly feel is necessary at this point:

So what’s the real solution? In the below passage, Doran provides some solid language to keep in mind when constructing a policy. Swap out the term harassment for a different work concern and add a paragraph such as this one before every new subject. (Unfortunately, the NLRB says you can’t just feature it on page 1 and be done with it—that’s not specific enough.)

“Is it simply better to have no handbook at all?” asked an attendee during the webinar’s Q&A session. In response, Doran reminded everyone that a handbook isn’t just there for the employee. It’s there for supervisors to discipline properly and keep everyone on course. Do you really trust managers to know your policies inside and out and execute them flawlessly without having anything on paper to guide them? That’s why going commando isn’t really an option.

Your best bet is to head back to the keyboard and keep typing. Ten more cautious drafts of the handbook and you’ll be almost there.