Tuesday, October 2, 2018

Under Promise and Over Deliver, Even in Your Employee Handbook

When I was in law school, one of my professors told me that the golden rule in a jury trial is to under promise and over deliver to the jury. Don’t make promises to the jury that you can’t keep, and don’t make promises that you don’t need to make. Employers should heed this advice when drafting their employee handbooks.

Employee handbooks are often riddled with unnecessary promises that require the employer to do certain things that it has no reason to require itself to do. For example, employers often promise in their employee handbooks to provide annual performance reviews at the end of the year. The end of the year is always crazy with the holidays and year-end activities, so such a promise only provides the employer with needless extra work. If the employer runs out of time to conduct a performance review, an employee may argue that this was a breach of the employment contract for which the employer could be held liable.

More problematic for employers are promises to engage in certain activities prior to firing or laying off a worker. Illinois is an at-will employment state, so in most circumstances employers can get rid of an employee without undertaking a review of the employee’s work or even providing a reason why (although doing so, is always a good idea to prevent the employer from being accused of letting the employee go for illegal reasons). Therefore, there is no reason to promise to do anything before letting an employee go.

Employers can also improve their employee handbooks by replacing “will” with “may.” Instead of promising that the employer will do something in a given year, the employer can give itself more wiggle room by stating that it may do something.

Many employee handbooks are sitting on a shelf accumulating dust, having not been updated in decades. This is bad. Employment law has changed a lot in recent years, and employers are bound by what is in their handbooks, so provisions in these handbooks that are not consistent with the law can cause employers all kinds of headaches. Make sure that you regularly update your employee handbooks, and feel free to contact me for help doing so.