The Importance of Having Written Employment Policies

I was recently retained by a new client to defend the company against wage and hour charges brought by a former employee that were filed with the California Labor Commissioner’s office. (The Labor Commissioner’s office provides a streamlined forum for employees to recover unpaid wages from their employers.) As I do whenever I get a new client, I asked if they had an employee handbook or other written personnel policies. Unfortunately, they did not. This makes it much more difficult to defend against employment claims brought by employees. The failure to have written policies may be taken as evidence that you do not comply with your legal obligations.

What Can Happen If You Don’t Have Written Policies

At the Labor Commissioner hearing with my new client, the hearing officer unsurprisingly asked if my client had written policies regarding overtime and meal and rest breaks (which were the subject of the employee’s claims). Ideally, my client would have had these written policies and the employee would have acknowledged receiving them by signing a written acknowledgment. Had these documents existed, I could have presented the hearing officer with the employee’s signed acknowledgment to show that he had received the company’s policies advising him of his rights to legally required meal and rest breaks and overtime.

But without these, it was difficult to prove that my client has lawful policies. My client then provided the hearing officer with incorrect information about what the company’s policy actually was on rest breaks. If I had written policies to point to, I could have told the hearing officer that the written policy was the correct one, and not my client’s verbal testimony which he had gotten mixed up.

When I asked the employee why he never complained to his supervisors that he was supposedly unable to take meal or rest breaks, he said it was because he did not know he had the right to take them since the company never told him about them. Again, if I had a written acknowledgement of their lawful policies, I could have refuted this.

This same scenario gets played out in virtually any type of employment-based lawsuit. Whether the employee is alleging discrimination, harassment, retaliation, failure to provide medical leave, or wage and hour violations, it is crucial that you be able to prove you have legally compliant policies that you have provided to your employees.

The Written Policies You Should Always Have

While you should always give your employees an employee handbook that informs them of your policies and their rights under the law, at a minimum you should always provide written policies on the following topics – and be sure to obtain your employees’ signed acknowledgment that they received them:

• Prevention of discrimination, retaliation and harassment (a written policy is required by law if you have 5 or more employees)
• Reasonable accommodation for employees with disabilities
• Timekeeping requirements
• Overtime
• Meal Breaks
• Rest Breaks
• FMLA/CFRA leave (a written policy is required by law if you have 50 or more employees)
• New Parent leave (a written policy is required by law if you have 20 or more employees)
• Pregnancy disability leave (a written policy is required by law if you have 5 or more employees)
• Paid sick leave (a written policy is required by law if you have any employees)

And if there is any doubt that your employees are unable to read English, make sure to provide them the translated documents in their original language.