By Dana K. Stripling, JD, Of Counsel, Garlo Ward P.C. www.garloward.com
Posted March 11, 2004
For all facilities
When current or former employees ask to see their personnel files, whether or not you must comply is completely up to your company policy and practice. For non-governmental employers, there is no Texas law which compels an employer to allow an employee access to their personnel files, including evaluations, attendance records, supervisor notes, etc. So, if your written handbook or policies do not address this issue, they should.
Even if your company policy does not require you to give employees access to their files, it is a good idea to allow them a chance to review their files. By prohibiting access, you could give litigious-minded employees the idea that you have something to hide. BUT, this means you need to ensure that an employee’s file accurately reflects an employees work history. Every file should include an employee’s annual performance evaluations as well as written warnings or documentation of verbal consultations.
Of course, an employee’s access to review their file does not mean that the facility has to make copies of the file for the employee. That, too, is a matter of company policy and practice. And an employee should never be left alone while reviewing their file. You have to anticipate that one sneaky employee who makes off with documents from his or her file. And remember, you should treat employees uniformly to preclude any complaints of unfairness or discrimination.
Following is some general suggested policy language allowing employees to review their personnel files, though you should modify any policy to meet your facility’s specific needs:
PERSONNEL RECORDS – For purposes of proper reporting and payment of wages and benefits, you are responsible for supplying, in writing, accurate personnel information requested by [FACILITY]. To ensure that your file is up-to-date at all times, including your professional resume, it is your personal responsibility to notify us about changes in your personnel information or professional status. All personnel files are the property of [FACILITY], although you may review your own personnel file upon scheduling a time during regular work hours to do so with our Office Manager. [FACILITY] does not provide copies of personnel files.
10 MOST COMMON MISTAKES IN EMPLOYEE HANDBOOKS
- NOT having one or not keeping the one you have current — Handbooks should be updated at least bi-annually (particularly because the Texas legislature, which routinely changes state employment laws, convenes every other year).
- Using form handbooks — Every state, and even some cities, have employment laws peculiar to their region, and form handbooks drafted out of California or New York often run afoul of those laws.
- Including lots of details on company policies and procedures, which confuses employees and provides more fodder for employee’s lawyers. Employers frequently include language that is too specific or exclusive in descriptions and lists, especially those involving discipline
- Including “probationary” period — Probation periods are still very commonly used in employee handbooks, but they have been found by the Texas courts to quite frequently negate a company’s “at will” rule. We suggest employers have an “Orientation” policy, which addresses initial training during the first two, or three months of employment but which expressly does not negate an employer’s “at will” policy (see no. 6 below).
- Not being consistent with other company documents.
- Not adding at-will disclaimer
- Sabotaging disclaimers by what managers say, reassuring employees that their jobs are secure
- Not adapting handbook for each state’s laws (see no. 2 above).
- Failing to update manual frequently for changing laws (see no. 1 again!).
- Setting unrealistic policies
HANDBOOKS: WHAT TO INCLUDE AND NOT
At a minimum, your employee handbook should address (or not) the following topics.
IN:
Facility Welcome
Facility history/philosophy
Employee classifications
EEO statement
At-will statement
Anti-harassment policy
Transfer policies
Promotion policy
Definition of workweek/hours
Meal and break periods
Overtime policy
Time records
Personnel records access
Flexible schedule
Pay periods
Performance appraisals
General disciplinary rules
Holidays, vacations, sick leave
Absenteeism and tardiness
Benefits
Grievance
Resignation & terminations
Confidentiality
Business ethics
Reporting misconduct or client/resident mistreatment
E-mail, internet, computer and phone use
Dress code
Safety rules
Smoking
Drug-Free Workplace policy
OUT:
Instructions to managers (maintain separately)
Arbitration clause (separate)
Details on benefits (refer to summary plan description)
Details that change frequently
Specific forms (make available in business office, as they may frequently change)
Any policy that isn’t enforceable
Any promise you don’t intend to keep.
A LITTLE MORE ABOUT AT-WILL STATUS:
UPFRONT AND PERSONAL
You can never — ever — be too explicit that an employee is only “at will,” that is, that he or she may be let go at anytime, for any or no reason, with or without notice. Texas is one of the few states left that still enforces the “at will” doctrine and does not require an employer terminate an employee only for “just” or “good” cause. So your facility’s “at will” policy should be stated in job offer letters, job applications and employee handbooks, and reiterated in policies about discipline.
For example, one employee filed a wrongful termination lawsuit claiming he could be fired only for “good cause” because he didn’t understand the legal term “at will” contained in employer’s handbook. Fortunately for this employer, it had taken the following steps to send its at-will message loud and clear:
1. It sent the employee a job offer letter that expressly described the job as an “at-will” position. The employee admitted that he had read and signed it and had not asked any questions of the employer about the above terms’ meaning. The court ruled that it was the employee’s duty to seek assistance before signing if he did not understand the terms.
Extra Measure: Do not just state that an employee is “at will.” Give a clear definition of it also. And also remind employees in writing to ask the facility Administrator if they have any questions.
2. The company gave the employee a printed version of its personnel policies, which stated that employees should understand that employment “is not for any definite term and may be terminated at any time with or without cause and without advance notice.”
Extra Measure: Insist that each employee acknowledge receipt of the company’s policy manual – have them sign for it.
3. The employer also put its personnel policies online for ready access and review.
Extra Measure: Though you need not keep your policies online, you should keep them up-to-date, distribute revisions in print and have employees sign for them, and make a complete and current copy available during business hours in the business office.
Following is some typical language we generally suggest for an “at will” policy, though it may be appropriate to reiterate the “at-will” concept in other policies throughout a facility’s handbook:
[FACILITY] considers the employment arrangement to be mutual. Employment is a relationship that exists as long as both [FACILITY] and you determine it is in our respective best interest. You, of course, are free to resign at any time for any reason, with or without notice. We hope you will provide proper advance notice whenever possible to ease the transition. Similarly, [FACILITY] is free to discharge you at any time, with or without reason and with or without notice.
So, we encourage you to review and, where necessary, revise your employee handbook and policies to ensure compliance with state and federal law, to notify employees of your facility’s standards of conduct and expectations, to clearly delineate the bases for employee discipline, and to protect your facility for the inevitable claims for unemployment, unpaid wages, wrongful or unfair discharge, etc. In every claim asserted by an employee, your attorney’s first question will be: “Can I see your policy about that?” So, be prepared and be protected!
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
