This is the first article in an upcoming series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on various disclaimers that should be considered when writing an Employee Handbook.

 DISCLAIMERS

Placement of at-will employment disclaimers in employee handbooks, employment applications, and in personnel evaluations are keys to creating and maintaining an at-will employment relationship with employees.

a.     Handbook is Not a Promise or Contract.

At the beginning of the Handbook there should be a statement such as the following: “This handbook and the policies contained herein do not in any way constitute and should not be construed as a contract or agreement, express or implied, of employment between the employer and the employee, or a promise of employment. This handbook provides policy guidelines only and should not be relied upon as a definite statement of policies.”

b.    Reservation of Right to Change Company Policy.

 The beginning of an employee handbook should conspicuously advise the employee that the Company guidelines may be modified at any time, at the discretion of the Company.  While a Company is typically free to run its business as it sees fit, in wrongful termination litigation, the failure to have an express reservation to modify company policy may prevent the Company from making the modifications effective to employees hired before the modifications were in place.

See Eardman v. Bethlehem Steel Corp. Employee Benefit Plans, 607 F. Supp. 196 (W.D.N.Y, 1984) (company unable to terminate social insurance plan).  While Utah may generally recognize the employer’s unilateral right to modify the employment relationship, such “reservation” language will help prevent an argument to the contrary.

Sample Handbook Language:

Regardless of the contents of this Handbook, the Company reserves the right to modify, amend, alter, revoke or otherwise deviate from any policy, practice or employment condition at any time, with or without notice, in its sole discretion. The policies stated in this Handbook are subject to change at the sole discretion of the Company, at any time, without notice.

c.   Disclaimers at Large.

Disclaimers are appropriate in several parts of a handbook.  At a minimum an at­ will disclaimer should be placed in the introductory portion of the   handbook so it is conspicuous, and also placed in the acknowledgment form where an employee signs and acknowledges receipt of the handbook Also, at-will disclaimers should be placed on written employment applications and a company’s personnel evaluation forms, to help prevent employee arguments that such documents altered the at-will employment relationship.

d.  General At-Will Disclaimer

A conspicuous at-will disclaimer at the beginning of the handbook is important to prevent the argument that an implied employment contract exists between the employer and employee. Hodgson v. Bunzl Utah, Inc., 844 P.2d 331, 334 (Utah 1992) (“this Court has held that when an employee handbook contains a clear and conspicuous disclaimer of contractual liability, any other agreement terms must be construed in light of the disclaimer.”)

Sample Handbook Language:

• The Company is an “AT-WILL” Employer, which means both the Company and its employees retain the right to terminate the employment relationship at any time, with or without notice, and for any reason or for no reason at

• No provision of this Handbook should be construed as creating a contact of employment between the Company and any of its Either you or the company may terminate the employment relationship at any time, with or without reason or notice.

• Except as otherwise provided in a writing signed by the Company President, all employees of the Company are employed “AT-WILL,” meaning that either the Company or the employee can end the employment relationship at any time for any reason, or no

e.   Authority to Bind the Company and Disclaimer of Oral Representation (At-Will).

A discharged employee may allege in a lawsuit that he/she had been given oral assurances that their employment would last for a specific period, or that they could not be terminated except for cause.” The employee may claim that someone in a supervisory or hiring capacity said things to them at the time of employment or thereafter which led them to believe that the “at-will” employment relationship did not apply to them.

Sample Handbook Language:

No supervisor, manager or representative of the Company, other than the (specify officer) has the authority to enter into any agreement with you for employment for any specified time or make any commitments contrary to the foregoing at-will relationship of your employment.

f.     Other Employee Handbook Sections for Disclaimers.

• Probationary Specific probationary periods for new employees is probably risky since employees who satisfactorily complete such a period may feel a heightened sense of job security and claim they can then not be terminated except for cause, However, if your company allows a probationary period, refer to it as an “orientation period” or “introductory period” and reaffirm that employment is at-will.

Sample Handbook Language.

The successful completion of this introductory period should not be construed as creating a contract or as guaranteeing employment for any specific duration or otherwise altering the at-will nature of your employment.

• Progressive Discipline and Employee Conduct Employers often include in their employment practices, whether written or informal, a graduated disciplinary procedure for punishable offenses. Some offenses may be minor and discipline for such action may be a verbal warning, or a note to the personnel file.  Some companies have written policies which provide graduated levels of discipline, ultimately resulting in discipline or dismissal.  In either instance, the employee handbook should fully reserve discretion to the Company regarding decisions on discipline or termination. Include in a list of offenses resulting in discipline or discharge a catch-all category (e.g., dishonesty, insubordination or incompetence, conduct that does not serve the best interest of Company) to assure maximum flexibility in your options. Affirm that any rule or violation list is not all-inclusive, and that regardless of the list of offenses which may be the subject of

discipline or discharge, the Company reserves the right to terminate at-will for any reason, or no reason.

Make certain the procedures are realistic for your company.  If they are not, don’t put them in the Handbook.

Sample Handbook Language:

It is not possible or desirable to identify every possible infraction and employees must observe reasonable standards of conduct and may be disciplined when they do not. Furthermore, this list is not all inclusive nor does it alter the at-will relationship between the Company and the employees and accordingly, nothing in this Handbook should be construed as a promise of specific treatment in any given situation.

• Complaint Resolution. Many companies have a policy for employees to discuss problems or air grievances, such as an “open door” policy or internal review While such policies can be very beneficial to companies they may also create implied contracts.

• Highlight the discretionary “guideline” nature of the

• Reaffirm the right to terminate at

Sample Handbook Language:

This policy is set forth merely as a guideline. It does not alter the at-will relationship between an employee and the Company. Implementation of this policy should not be construed as preventing, limiting or delaying the Company from taking disciplinary action, including immediate termination, in circumstances where the Company deems such action appropriate.

• Employee Since benefits often change more rapidly than employee handbooks, a disclaimer in this section is appropriate.

Sample Handbook Language:

• This Employee Handbook description of benefits is only a brief description of Company’s benefit plans, and these plans may The Company reserves the right to change or terminate the benefits it provides its employees at Company’s sole discretion to the full extent of the law.

• Create a checklist for the The following is a brief description of the Company’s employee benefits.  The Company reserves the right to modify or terminate these benefits at any time, for any reason, consistent with the law. For more complete information regarding any of the Company’s benefit programs, please contact ______.

• Acknowledgement Forms. When handbooks are distributed each employee should promise to read the entire handbook and should sign a form acknowledging that they have received and will read Have a management representative witness acknowledgment.  Prepare acknowledgment in duplicate or with a tear-out sheet to be kept in employer’s file (or even better, in a safer place where no one but a key employee in HR or Management has access to the acknowledgment, since such acknowledgment  forms have been known to somehow “disappear” when there is a potential suspension or termination dispute with an employee).

The acknowledgment disclaimer should include the following: Employee understands the employment relationship is “at-will”.  Employee understands that only the President (or other officer designated in writing in the handbook) can modify the handbook, in writing. Employer has the right to modify or change any policy at any time.

Sample Handbook Language: Acknowledgment of Receipt

I acknowledge that I have received the Company’s Employee Handbook which was prepared to provide general information about the Company.  I understand that the Handbook is a guideline only and is not a contract of employment between me and Company and that the Company reserves the right to modify this Handbook or amend or terminate any policies or benefits described herein at any time. I understand that the Company and I have the same right to terminate the employment relationship at any time, for any reason or no reason.

I further understand that no supervisor, manager or representative of the company, other than the President, has any authority to enter into any agreement to alter the at-will relationship between me and the Company, and that any such agreement shall not be enforceable unless in writing and signed by both me and the President.

Overall Comments Regarding  Remember, a general at will disclaimer should also be placed in a Company’s written employment applications and written personnel evaluation forms.  Adding the at-will disclaimer to these documents weakens an employee’s claim that such documents could alter the at-will employment relationship set forth in the handbook.  Furthermore, signature line acknowledgments for the employee to sign should be placed at the end of employment applications and personnel evaluations so a Company can easily prove that the employee saw and reviewed the documents.