“The handbook says so.”
Usually, that should help settle a workplace question. But what happens when the handbook itself is the problem?
Imagine a manager refusing to pay overtime because an employee did not get approval first. Or issuing an attendance warning without checking whether the absence was protected leave. In both situations, the manager may believe they are simply following company policy.
That is why an employee handbook review should look beyond missing sections and outdated dates. Sometimes the risk is a sentence that sounds perfectly reasonable until somebody acts on it.
Here are six types of employee handbook policies worth a closer look.
1. Policies that tell employees to keep their pay confidential
Salary discussions can be uncomfortable. Two employees compare their wages, discover a difference, and start asking questions. A company might prefer to avoid that conversation altogether.
But a preference is not a legal basis for prohibiting it.
Employees covered by the National Labor Relations Act generally have the right to discuss their wages. A policy banning those discussions, or requiring management’s permission beforehand, can violate the law. These protections apply in both union and non-union workplaces. NLRB guidance on wage discussions.
Look for wording such as “compensation information must remain confidential.” Even if the company intended to protect payroll records, employees may understand that sentence as a ban on discussing their own pay.
Keep those two issues separate. Protecting payroll systems from unauthorized access is different from stopping employees from voluntarily comparing wages.
Coverage matters, too. The NLRA does not cover every category of worker, and other laws may provide additional protections. NLRB employee rights and coverage.
2. Rules that prohibit every negative comment about the company
“No employee may make negative comments about the company, its managers or its operations.”
It sounds like a rule about professionalism. Read literally, though, it could also prohibit employees from raising concerns about unsafe conditions, unpaid wages or unfair scheduling.
For ordinary private employers, this is generally not a First Amendment issue. Constitutional free-speech protections primarily restrict government action. The relevant workplace protections often come from labor and employment laws instead. Supreme Court explanation of the distinction.
Under the NLRA, covered employees may have protection when discussing workplace problems together, including online. An employee speaking on behalf of coworkers or trying to start group action can also be protected. Not every personal complaint qualifies. NLRB social-media guidance.
Separately, an individual discrimination complaint may be protected against retaliation even without group activity. EEOC retaliation guidance.
Your handbook can address workplace misconduct and protect legitimate confidential information. The wording should identify those concerns specifically, rather than treating anything unflattering as misconduct.
Before disciplining someone over a post or complaint, review the circumstances—not just whether management disliked what was said.
3. Disciplinary promises that conflict with your employment terms
Consider this sentence:
“Employees will always receive three written warnings before termination.”
Perhaps the company meant to describe its usual approach. An employee could reasonably read it as a promise.
Depending on applicable state law, handbook language can have contractual consequences. South Carolina, for example, has specific requirements for disclaimers intended to prevent a handbook from creating an employment contract. A generic sentence copied from another company may not serve the same purpose everywhere. South Carolina Code, Section 41-1-110.
An at-will statement is not a universal solution, either. Montana generally requires good cause for discharge after an employee completes the probationary period, subject to the applicable statutory framework. Its law also addresses certain violations of an employer’s written personnel policies. Montana discharge protections.
Progressive discipline is not inherently a problem. The problem is promising a fixed process without considering whether that promise is intended, workable and legally appropriate.
Read your discipline, introductory-period and termination sections together. They should describe a coherent approach, not contradict one another.
4. Attendance policies that leave no room for protected absences
An attendance system can look fair because everybody receives the same number of points for an absence.
But treating every absence identically is not always lawful.
For eligible employees of covered employers, protected Family and Medical Leave Act leave cannot be counted against them under a no-fault attendance policy. Calling the system “automatic” does not change that protection. DOL guidance on FMLA protections.
A separate issue arises when an employee needs leave or a schedule adjustment because of a disability. Covered employers may need to modify attendance or leave rules as a reasonable accommodation, unless doing so would cause undue hardship. Exhausting the company’s standard leave allowance does not automatically end that assessment. EEOC guidance on leave and accommodations.
Review phrases such as “no exceptions,” “automatic termination” and “all absences count.”
Managers need a clear route to HR before imposing consequences where protected leave or an accommodation may be involved. They should not have to guess whether an exception is legally required.
5. Overtime policies that confuse approval with payment
Requiring employees to obtain approval before working overtime is one thing. Refusing to pay compensable overtime because approval was missing is another.
For covered, nonexempt employees, a policy requiring advance authorization does not remove the right to payment for compensable overtime actually worked. The Department of Labor expressly addresses this distinction. DOL overtime guidance.
Suppose an employee stays late to finish a task, and the manager knows they are working. The company cannot simply erase that time because the employee skipped an approval step. Work the employer knows or has reason to believe is being performed can count as working time even when it was not specifically authorized. DOL guidance on unauthorized work.
Your handbook should separate the obligation to record and pay for work from the process for managing unauthorized overtime.
Make the reporting instructions clear. Employees should know how to record extra time and correct a timesheet, including when they worked outside their normal schedule.
6. Arbitration provisions treated as routine handbook language
Arbitration is not automatically unlawful. Neither is every agreement requiring employees to resolve claims individually.
In Epic Systems v. Lewis, the Supreme Court recognized that agreements requiring individualized arbitration can be enforceable under federal law. That does not make every arbitration clause valid, regardless of its wording or circumstances. Supreme Court decision.
There are also important statutory limits. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act allows a person alleging qualifying misconduct to reject certain predispute arbitration agreements and joint-action waivers in cases relating to that dispute. It applies to disputes or claims arising or accruing on or after March 3, 2022. Public Law 117-90.
This is not a section to copy from an old template and assume a handbook signature will resolve.
Have employment counsel review the agreement, its scope and the process for obtaining assent. A receipt acknowledgment and an enforceable arbitration agreement should not be treated as interchangeable without that review.
How to spot troublesome handbook policies?
Start with the sections managers use when making decisions about pay, complaints, leave and discipline.
For each policy, ask:
- Does it prohibit something employees may have a protected right to do?
- Does it promise a process or benefit the company does not consistently provide?
- Does it distinguish company preferences from legal obligations?
- Does it account for the locations and workers it applies to?
- Does the manager know when to involve HR?
Pay particular attention to words such as “always,” “never,” “all” and “automatic.” They are not inherently wrong, but they deserve a second look.
After making changes, explain them to the people applying the policies. Updating a PDF will not help much if managers continue following the old version.
A useful handbook needs more than firm wording
A policy does not become enforceable because it sounds official. And an employee’s signature does not make an unlawful rule lawful.
A useful handbook tells employees what to expect while giving managers a practical, legally informed way to respond.
Handbooks.io can help you build and organize your employee handbook. Review the finished policies against your workforce, locations and actual practices, with legal advice for provisions that carry particular risk.
The goal is straightforward: when someone says, “The handbook says so,” the next step should be one the company can stand behind.