Employer Policies Should Be “De-Formed”
It’s said “lawyers reach for forms like babies reach for bottles” and that is true. But it is equally true for employers and HR Officials. Many important employment policies and forms are “off the shelf” and a form for almost every conceivable situation is usually just two-clicks away. Sometimes they work just fine.
But when is it a bad idea to “go generic”? Here are some examples of problems commonly encountered by employers and employment counsel:
- Forms that ignore specific state laws regarding personnel file access, post-termination process and leave requirements. This is especially problematic for multi-state employers.
- Contracts that have termination and other provisions that do not fit the projected possibilities for specific important key employee hires.
- Non-compete and non-solicitation agreements and policies that are not tailored to the actual legitimate business interests of the employer and, thereby, difficult to enforce or even illegal in certain states.
- Separation agreements that release too much or too little or fail to incorporate consideration and rescission provisions necessary for enforceability.
- Evaluation forms that are so broadly written and removed from the specific job description as to be virtually useless or even counter-productive in subsequent disciplinary matters.
- Out-of-date application forms (for example, a form that in Minnesota hasn’t “banned the box” regarding arrest or conviction records).
- Confidentiality policies that are vague or unrelated to the employer’s actual proprietary information relevant to its products or services.
Takeaway: In these and many other situations, the ease of low-cost generic forms may well be offset by costly complications in interpretation and enforcement. It is worth thinking about “de-forming” and seeking cost-effective legal review of policies and contracts meant to address important legal aspects of the employment relationship.