TOOMEY LEGAL

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Employee Handbook & Contract Drafting

Prudent employers use their employee handbooks or policy manuals as a convenient vehicle for conveying important policies, regulations and laws to employees in a single, easily-managed package. It is easy to track handbook distribution, and wise to have employees sign for their handbooks to acknowledge receipt and comprehension. Handbooks can be a great way to disseminate mandatory arbitration provisions, sexual harassment policies and progressive discipline policies. However, Massachusetts courts have limited employers' ability to impose rules considered binding upon employees without also considering those rules binding on the employer. The best example of this situation is the progressive discipline policy, which establishes a fair and predictable system of discipline for employer and employee to rely upon. Many companies have attempted to disclaim any obligation to abide by the policy, while enforcing the policy against employees. Massachusetts courts have shifted against this practice, preventing employers from "having their cake and eating it too." Employers must now be very careful when drafting policy manuals or employee handbooks, as regulations imposed without proper forethought may come back to haunt them.

Employment contracts can be a great way for both an employer and an employee to accurately set forth their intentions to ensure a meeting of the minds and prevent future disputes. For the employer, the employment contract also presents the best opportunity to impose non-compete agreements or non-solicit agreements, arbitration or other alternative dispute resolution agreements, and choice of law and choice of forum provisions. Employers must be very careful with the drafting of employment contracts, as the contract will typically be construed against the employer and any ambiguities could lead to all or part of the contract being rendered unenforceable. Employers must also avoid overreaching with regard to post-employment competitive restrictions. Courts will exercise equity powers to defeat a contract that was unilaterally drafted and imposes too many restrictions upon an employee.

If you or your business require legal advice or drafting services in the context of creating or revising employee handbooks or employment contracts, call Toomey Legal.