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One Size Rarely Fits All: Proper Use of Sample Policies

By Kelly A. Trainer, Employment Practices Manager

Imagine this: Your employee consistently borrows agency office supplies and other equipment for personal use and to manage an online business. You want to fire her for this misuse of agency property. Still, your attorney has raised concerns about the chances of success at the disciplinary appeal because you do not have a policy or rule prohibiting personal use of agency equipment. Or you may have an employee who has taken to social media to complain about the agency. Yet, you have not drafted a policy about this, so Human Resources and the supervisor are unsure what they can or cannot do. Or maybe you have an employee you think is misusing agency computers, but your attorney has raised concerns about your ability to lawfully search his computer because you don’t have a policy expressly reserving the right to search and limiting an employee’s expectation of privacy.

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These are a few common issues that can result from not having a policy in place. Clear, up-to-date policies and rules are a risk management best practice and foundational to good governance. Employees generally respond well when knowing what is expected of them. Having clear rules and policies makes daily operations easier because supervisors have guidance about handling issues when they arise. Having a policy in place is helpful in disciplinary appeals because it can be critical evidence in establishing that the employee was aware that the conduct was prohibited. Policies can also generally establish the overall fairness of an employer’s action and can be a crucial part of a defense to any number of claims in litigation.

As crucial as policies are, employers often lack them or have outdated or incorrect versions. Even when an employer decides to create or update policies, the task can be daunting. Few people enjoy writing a new policy from scratch. Most would rather have a “starting place.” This starting place often comes in the form of a “sample policy” found in a Google search or from a policy borrowed from a colleague at another agency. The starting place can also come from professional organizations such as the Society for Human Resource Management (SHRM), ADP, the Chamber of Commerce, Lexipol, or even the California JPIA. Such policies are often well-researched, well-written, and legally compliant. However, while these policies can provide an excellent starting point for drafting, all too often, the drafter takes the policy, changes the names and titles, and voilà—a policy has been born! Yet, using another’s policy can be a trap for the unwary. Here are some essential tips for good policy drafting.

It’s a Starting Point, Not an Ending Point
Using a sample policy, even one provided by a reputable professional organization does not alleviate the agency’s responsibility for its content. The drafter needs to critically examine every term and provision of the policy and be prepared to justify including them or not. If a policy is criticized or questioned in a future administrative hearing or litigation, there is no defense for borrowing a policy from another agency.

Never Assume the Policy is Legally Compliant for Your Agency
California employment law is complicated, especially for public agencies. A policy drafted for a private employer might involve different legal considerations than a policy for a public employer. For example, public employers must contend with federal constitutional issues when drafting a drug-free workplace or social media policy that private employers do not have to consider. In addition, different types of public agencies have different laws that apply to them. For example, school districts have a unique statutory scheme of leave laws that do not apply to other public agencies. Charter cities are exempted from laws that are not a matter of statewide concern or infringe upon their constitutional authority.

The size of your agency can impact the legality of the sample policy. Certainly, several laws are triggered once an agency employs a certain number of employees. In addition, “reasonable” compliance with laws can also differ depending on the agency’s size.

Further, labor and employment laws are constantly changing. It is always important to confirm that the relevant laws have stayed the same since the drafting of the sample policy. For example, the California Family Rights Act (CFRA) was recently amended to permit eligible employees to take CFRA leave to care for additional family members and a “designated person,” yet many employers have not updated their family medical leave policies to comply with these changes.

Lastly, it is always important to remember that you can never guarantee that some random policy found during an internet search is legally compliant.

Remember that Your Agency Has Its Own Rules
Any time an agency uses a sample policy, the drafter must take the time to consider the impact this policy has on the larger structure of the organization. The person who initially drafted that sample policy did not consider whether your agency’s personnel rules contradict with the definition of “workweek” used in the sample policy. The policy drafter must evaluate what other departmental or agency-wide policies, labor contracts, resolutions, and ordinances exist and ensure the new policy fits in the system appropriately. Failure to consider this issue can create complex conflicts in the agency’s policies and procedures. For example, if a police department adopts a policy that provides that an officer will have a pre-disciplinary Skelly meeting with the Assistant Police Chief, but the city’s personnel rules state that all employees have a right to a pre-disciplinary Skelly meeting with the Assistant City Manager, what due process should the employee have? Resolving this question can be complicated and often gives rise to challenges by an employee or labor union.

Remember that Your Agency Has Its Own Practices
A policy is only as strong as the people who enforce it. If, for example, a sample policy has a fantastic performance evaluation procedure, it is only valuable if an agency has sufficient staff or resources to implement it as intended. In addition to confirming that a policy conforms with the other rules and policies of the agency, a policy drafter needs to verify that the procedures required by that policy can and will be followed and that it does not improperly impact other practices. For example, if an agency borrows from a harassment prevention policy that has a very detailed procedure in place for the employer’s response to a complaint of harassment, and the agency is not able to meet that procedure due to limited staffing, the failure to follow the harassment policy could be used as evidence that an employer failed to respond to a complaint of harassment adequately.

Review and Revise
Revisit rules, policies, and employee handbooks periodically. Update policies that have changed (make sure you communicate the changes to employees) and consider other changes to address issues that have come up. If you update a policy and do not update the handbook, you are inviting potential legal problems and confusion over what the actual policy or procedure is. In addition, periodic review of policies makes the review easier to undertake. The more outdated a policy is, the longer the review and revision will take.

Meet Your Labor Obligations
If a labor organization represents your agency’s employees, there is a very strong likelihood that employment-related policies will fall within the scope of bargaining under the various California bargaining statutes. As such, employers must follow the procedural statutory steps with the labor organization before implementing a new policy. When in doubt, contact your labor attorney.

Educate Your Employees
The importance of training and educating employees cannot be overstated. Any time a new policy is implemented, the agency should always consider the best way to introduce it to the workplace. Is formal training necessary? Can you explain it with an email summary? Can you create a brief webinar? Should you give talking points to supervisors when introducing the new policy? Should you require a signed acknowledgment of receipt and an opportunity to review? Think through and plan the implementation process.

Talk to Human Resources (and Maybe Even an Attorney)
Any time a supervisor writes a new personnel policy, involving the agency’s human resources staff is vital to obtain input and resolve any potential concerns early on. Human resources will often be able to assist with the issues identified above. Also, depending on the policy, including the agency’s legal counsel in the drafting or at least the final review is usually important.

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