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Paying close attention to detail a must when drafting employment policies

April 16th, 2013  |  Ron Miller

A recent opinion by a federal district court in Idaho reiterated the importance of paying close attention to the details when drafting employment policies. In Brown v Valley County, the court found that a long term county employee had a constitutionally protected property interest in his employment relationship with the county. While this case involved a public employee’s due process rights, the reasoning of the court has implications for all employers with employment policies.

Specifically, this case turned on the court’s interpretation of a disclaimer in the county’s policy manual. While the disclaimer appeared in bold print, on the first page of the policy manual explicitly stating that the manual did not create an employment contract, elsewhere in the manual, in a self-contained paragraph, was a statement that employees past there introductory period could be discharged only for cause related to performance of job duties or other violations of policies set forth in the manual. The employee signed an acknowledgement of receipt for the relevant 2004 policy manual in December 2003.

He employee moved for partial summary judgment, seeking an order that he had a constitutionally protected property interest in his employment relationship with the county. The county, on the other hand, countered that the plaintiff was an “at-will” employee, and so did not have a protected property interest in his continued employment. Thus, the question before the court was whether the manual had preserved the employee’s “at will” status.

At-will status. In this instance, the court concluded that the disclaimer in the policy manual did not preserve the employee’s at-will status. While the policy manual mentioned that an employee is at-will during the introductory period, after the 90-day introductory, there is no mention of an employee retaining the at-will moniker. Instead, employees are told that the county’s policy requires “cause related to performance of their job duties or other violations of this policy” before an adverse employment action may be taken against them. Moreover, while the employee signed an acknowledgement and receipt form, it merely reiterated that the policy manual was “not a contract and cannot create a contract,” and that the employee was obligated to perform his duties in conformance with its provisions.

Here, the court compared this case to the circumstances faced by the court in Harms v Powers County, which involved a strikingly similar policy manual. In Harms, the employer moved for summary judgment arguing that the language of its policy manual preserved the employee’s at-will status, despite a provision requiring cause for termination of employment. Provisions in the policy manual in Harms regarding workplace conduct as well as disciplinary penalties were not all inclusive and subject to change at any time. Because of the unlimited discretion retained by the employer, the court found that the manual could not be read to create a protected property interest.

More importantly, the employee in Harms signed an acknowledgement form that stated he “understood and agreed” that the handbook was not an employment contract of a guarantee of any particular length or term of employment, that he was an “employee at-will” and that the list of rules contained in the handbook were “illustrative and not inclusive.” The contractual disclaimer, the discretionary language of the manual, and the receipt and acknowledgement form under which the employee unequivocally renounced a right to anything other than at-will employment, precluded the employee in Harms from claiming a property interest in continued employment.

By way of comparison, the acknowledgement in the instance case did not unequivocally state that the employee was employed “at-will.” Moreover, nowhere in the policy manual, other than in the paragraph discussing the introductory period, did it say employees could be discharged for any reason or at any time, without cause. Lastly, although the county’s policies could be changed at any time and the county retained the discretion to change them, the employee could only be discharged for “violation of this policy,” meaning the policies expressed in the policy manual. These facts led the court in the instance case to conclude that after the 90-day introductory period employment was no longer “at-will” given the mandatory nature of the “for cause” paragraph excluding reference to any other part of the policy manual.