Tips for Drafting Employee Handbooks in Florida

This article addresses tips and considerations for employers who are considering whether they should codify employment policies into an employee handbook which may be interpreted or evaluated under Florida law (or “employee manual,” as they are sometimes called). To make that determination, an employer should ask a few key questions to be fully aware of their benefits and what is at stake. This article outlines the analytical framework to determine whether an employer should consider an employee handbook, what objectives can be accomplished with an employee handbook, and what objectives cannot be accomplished with an employee handbook.

Should my company have an employee handbook?

An employee handbook is a large document that provides company-specific information and resources to employees, including corporate policies, procedures, and forms that an employee can reference or utilize while employed by the company. Before going “all in” on drafting an employee handbook, it is important to first evaluate whether an employee handbook is necessary to achieve your company’s objectives. Every company will have different needs. Although some companies have employee handbooks, that does not mean that every company should have an employee handbook.

What an employee handbook can and cannot do is explored in greater detail later in this article. Nevertheless, certain “pros and cons” can be considered at the top of the order:

• PRO: Employee handbooks are a great tool for effectively and consistently training employees on company policies, procedures, and form flow, thereby increasing the likelihood that many company disruptions, inefficiencies, or disciplinary proceedings (e. company administrative expenses) can be avoided.
• PRO: Employee handbooks are a great tool for effectively and consistently training managers on company policy, procedures, and form flow, thereby increasing the likelihood of standardizing the management of company employees in accordance with ownership- or executive-level expectations.
• PRO: Employee handbooks are a great tool for codifying federal or state employment regulations and provide notice of how to operate in accordance with those regulations, which increases the likelihood of compliance and decreases the likelihood of a lawsuit.
• PRO: Employee handbooks may provide an employee with “peace of mind” knowing that managers and other employees are generally expected to honor certain policies, procedures, or benefits which can be difficult for the employee to request or expect in the absence of an employee handbook.
• PRO: Employee handbooks may increase employee morale and company reputation.
• CON: Employee handbooks are often utilized for the employee’s benefit against an employer in the event of a dispute.
• CON: Employee handbooks will not accomplish much to “change the rules of the game.” Benefits required by law cannot be modified in an employee handbook and, unless carefully constructed, employee handbooks generally cannot create contractual agreements

After considering those factors, an employer may determine that having an employee handbook is beneficial. If that is the case, consider the factors below to determine how the employee handbook should and should not be drafted.

What objectives should the employee handbook accomplish?

Before beginning to draft an employee handbook, it is critical to identify your company’s objectives. If your company has decided to draft an employee handbook, then the employee handbook should:

• Provide accurate information for using the employee handbook as a training tool in compliance with company expectations and any applicable laws.
• Provide a thorough code of conduct, which can trigger disciplinary action and provide employees with notice of conduct they should avoid, with a proviso that other items not listed could similarly trigger disciplinary action. Disciplinary actions create inefficiencies and distract the company from achieving its objectives. Therefore, taking proactive actions that can minimize the likelihood of them occurring, like providing adequate notice of unacceptable conduct, delivers value to the company.
• Provide all commonly used and standardized employment forms or other reference materials that employees may need to utilize during the course of their employment, e. PTO forms, HR forms, supply request forms, expense report forms, FMLA forms, etc., as attachments to the employee handbook. The employee handbook should be a centralized, one-stop shop for employees. Providing these forms in one location may encourage them to be utilized more often by employees, thereby reducing administrative expenses for the company.
• Present a professional brand and image of your company. One main objective of an employee handbook is to increase company morale and make people feel more comfortable working at your company. The employee handbook needs to accomplish this goal effectively to realize all potential value for the company. For example, some companies take so much pride in their employee handbooks that they make them publicly available to bolster recruiting efforts and even attract “like-minded” or labor-conscious clients and business partners.
• Avoid undermining the “at-will” employment relationship. See LaRocca v. Xerox Corp., 587 F. Supp. 1002 (S.D. Fla. 1984). If an employee handbook contains express language that the employee handbook is a contract and that the employee is to receive employment or benefits for a definite term, it is possible that an employee handbook could undermine Florida’s default “at-will” employment relationship.
• Ensure that the employee handbook does not alter any contractual obligations set forth in other company agreements, like noncompete agreements, confidentiality agreements, or company property agreements. To avoid this pitfall, employee handbooks should contain provisions that reference other company agreements and expressly subordinate any policies or procedures in the employee handbook to the contractual obligations in those agreements.
• Only describe benefits or company procedures that the company is confident it will be able to sustain for each employee, at all times.

For instance, consider a company that decides to “guarantee” its employees a “3-strike” disciplinary policy. This would be beyond what an employee is entitled to as an “at will” employee under Florida law (who could be terminated for any reason or for no reason at all). Now, consider that the employee has failed to deliver quality work product and has clearly demonstrated an inability to perform the duties of the employee’s role. Though it may be clear that the employee will not perform as needed at the company, the “3-strike” policy would require the employee to receive multiple warnings and other administrative remedies before being let go—all of which cost the company more time and money.

Though legally allowed to terminate the employee immediately, terminating an employee without utilizing the “3-strike” policy could expose the company to potential legal liability. If most employees are disciplined according to a “3-strike” rule, but an employee of a protected class or who was otherwise treated unfairly may have a claim for federal or state remedies. These scenarios present themselves with other types of common policies, and should not be adopted by a company without a firm commitment to consistently apply them.

Achieving those objectives in an employee handbook can provide significant benefits to a company’s bottom line. Nevertheless, getting it right can be a delicate task requiring careful drafting of provisions in accordance with Florida and federal law because, as explained below, employers cannot do anything they want in an employee handbook.

Some portions of the employee handbook must be drafted by the company as opposed to a lawyer given the subjective nature of the company’s offerings and expectations (e.g. conduct triggering disciplinary action, company benefits or policies that are offered in addition to what is required by law, PTO policies, supply request policies etc.). But final drafts of employee handbooks should be reviewed by competent legal counsel to ensure that they are in compliance with Florida and federal law before distribution.

What cannot be accomplished with an employee handbook?

Employee handbooks can be drafted to achieve many objectives that a company deems valuable as demonstrated above, but certain objectives cannot be accomplished:

• Generally speaking, employee handbooks cannot form contractual agreements. Florida law has held that employee handbooks are not contracts between employees and employers by default. Muller v. Stromberg Carlson Corp, 427 So. 2d 266, 270 (Fla. 2d DCA 1983). This could create issues if a company tries to attach other company agreements to the employee handbook to all be executed in one sitting. For example, companies should be careful attaching noncompete and non-solicitation agreements, company property agreements, or other separate contractual agreements to employee handbooks.

However, if certain contractual language is present, then it is possible for employees to enforce the employee handbook against the employer. See Falls v. Lawnwood Medical Center, 427 So. 2d 361 (Fla. 4th DCA 1983) (“The trial court should have first determined if the hospital’s personnel policies were part of appellant’s contract of employment; and if so, then analyzed them to determine what effect they had on that contract.”); see also Georgia Ports Auth. v. Rogers, 327 S.E.2d 511 (Ga. App. 1985) (interpreting Georgia law, which has a policy similar to Florida’s, disfavoring enforcement of employee handbooks, but still holding that “[w]e find nothing in the manual’s language which would allow appellant to avoid paying these benefits to an employee simply by discharging that employee on the very same grounds for which the employee sought the benefits”).

• Employee handbooks cannot alter benefits that employers are required to provide under Florida and federal law. For example, the Family and Medical Leave Act (“FMLA”) has voluminous regulations about leave benefits that employers are required to provide to employees. Those regulations will remain the same regardless of whether they are articulated in an employee handbook. Employers should be careful when writing their employee handbooks and discussing benefits available to employees. If, for instance, FMLA benefits are described incorrectly, the employer could be accused of trying to interfere with an employee’s rights to FMLA benefits. See Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 318 (3d Cir. 2014).

Conclusion

Employee handbooks can create substantial efficiencies that benefit a company’s bottom line, but they are not required. Companies should carefully weigh the benefits and potential liabilities associated with employee handbooks when determining whether to draft one itself. Furthermore, if the question of whether to draft an employee handbook is answered in the affirmative, then a company should consult competent legal counsel who is able to carefully draft the employee handbook in accordance with Florida and federal law while accomplishing the company’s main objectives.