When an Employee Handbook Goes Beyond What the Law Requires

By Eric B. Meyer

I’m gonna pause for a sec while you go and grab a copy of your company’s employee handbook. Now open it up to the anti-harassment policy and, click through, because your world may be about to be rocked.

Got your policy out? Good.

  • Does it define harassment more broadly than the law would?
  • Does it require your employees use the utilize the policy without worrying about whether the law technically forbids the conduct involved?
  • Does it provide for corrective action, regardless of whether the violation amounts to a violation of law?

Creating legally enforceable protections

If you answered yes to one or more of these questions, and your handbook doesn’t contain some sort of disclaimer that these “super” anti-harassment provisions do not create legally enforceable protections beyond what the law otherwise provides, check out this recent opinion (in Marini v. Costco) from a Connecticut federal court.

That’s because you may have yourself an enforceable contract with your employees.

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Here’s what the court had to say about that:

Today’s corporate employers compete not only on grounds of their raw ability to make, deliver, and sell goods and services at a low or reasonable cost but also on grounds of their corporate self-image as “good” corporate citizens. They likewise compete on grounds of their ability to attract employees by means of promises of innovative management practices that foster dynamic workplaces that are comfortable and safe.

This is not to fault the fact that Costco has adopted progressive anti-harassment policies but only to make clear that these policies, as framed without disclaimer, may give rise to legally independent and enforceable obligations for the benefit of employees that rely on them.”

So, if you want to go above and beyond what the law requires, that’s your prerogative. Just know that a court may hold you to your promise.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.