Employers should have policies to serve as a means of communicating important information about working for the organization; describing accrual methods for paid time off; setting forth prohibitions against sexual harassment and discrimination; detailing information about the use of social media; and other important subjects. However, there are certain things that cannot be stated in your policy manual.
The following are just a few examples of the “do’s” and “don’ts.”

IT IS PERMISSABLE TO SET FORTH THESE TYPES OF POLICIES
• “Employees should be aware that they do not have a reasonable expectation of privacy in documents and other communications (such as text messages or voicemails) that they create with our resources, including electronic resources.”

• “We believe that our employees should have at least thirty (30) minutes of uninterrupted time as a meal break (or a break to read, walk, etc.) to be relieved of all duties. This time is not compensated and we require employees to punch in and out for this 30 minute break.

• “Employees will be paid for a regular Company holiday only if they work the day before and the day after a scheduled holiday, unless those days are taken as vacation days or floating holidays per previous arrangements.”

YOU SHOULD NOT INCLUDE THESE PROVISIONS
• “We REQUIRE you to provide us with two (2) weeks’ notice.”
Massachusetts, and most states, follow the employment-at-will doctrine. A key concept of that doctrine means that either party can terminate the employment relationship at any time (for any reason that is lawful.) So requiring notice is violative of the at-will nature of the relationship. It may imply to the employee that during the notice period, the employee is entitled to remain employed with the business. Employers may REQUEST two weeks’ notice as a courtesy. Also, an offer of compensation (bonus or severance) for those employees who do provide the two weeks’ notice is permissible.
• “You MAY NOT discuss your salary or bonus with other employees.”
The National Labor Relations Act protects the right of an employee to discuss terms and conditions of employment with other employees. Inserting a prohibition on this type of exchange is in direct violation of this Federal law.
• “Our categories of workers include full-time, part-time, temporary, and volunteers.”
Under the Fair Labor Standards Act (federal), individuals may not volunteer services to private sector “for-profit” employers. Private for-profit employees may not utilize volunteers as part of their workforce.
• “We do not pay out PTO upon separation from employment.”
This statement is problematic, since PTO is usually “accrued” and viewed as including “vacation.” In most states, vacation is considered to be earned wage and thus MUST be paid upon separation from employment, whether voluntary or involuntary. Unused sick time hours under the MA Sick Time Law, however, do not need to be paid upon separation.
To protect their business, it is prudent for an Employer to have an employment law professional review the contents of its Manual before publishing and distributing to ensure it contains LAWFUL policies.

by Helene Horn Figman, Esq