Handbook Exception

Other than the protections of the federal laws, the most prevalent protection to employees, in Brian's experience, is the "Handbook" exception. Under the handbook exception, policies or manuals published by an employer which promises or guarantees certain treatment or procedures may limit an employer's ability to discharge an employee at-will.

One example of such a situation arose in a case Brian had several years ago. An employee walked into Brian's office and explained that he had worked for a large employer in town. The employee was approved for an intermittent medical leave of absence pursuant to the employer's policies to take care of his ailing, elderly mother. Shortly after starting the leave, the employee's mother's condition worsened and the employee had requested and received approval to take a full-time medical leave of absence.

However, the employee, before the medical leave was completed, requested an extension of the leave to continue care for his mother, who was now expected to die. The employee requested this extension early so that if it was denied, he could return to work at the conclusion of the approved leave.

The employer's Human Resources Director contacted the employee to further discuss his extension and that the Board would be making a decision. The employer never informed the employee that he would be terminated for requesting leave or that it was a possibility. Further, the employer instructed the employee to continue to pay for his wife's insurance through its medical plan.

In reliance on his employer's assertions, the employee did not return to work until a decision was made on his extension and continued to care for his mother. Shortly thereafter, the employer called the employee and informed him that his request had been denied and he was being terminated for not returning to work. The employee's mother died shortly after being terminated.

When Brian heard these facts, he wanted to help this man. There was no doubt in Brian's mind the termination was unfair. But unfair is not a violation of the law. So Brian reviewed the employer's handbook. It turned out that the handbook and policies guaranteed and ensured fair and consistent treatment to all employees. Moreover, the Human Resource Director stated that in fact the employer did have a policy that guaranteed fair treatment to all employees and if an employee was treated unfairly, it would be a violation of its policies.

Thus, Brian brought a case against the employer that the handbook limited the employer's ability to terminate this employee. The policy did not allow for an unfair termination. Brian also brought a negligent misrepresentation claim against the employer for failing to disclose to the employee that he could be terminated for requesting the leave and not returning to work while the request was being considered by the employer.

This case went to a jury trial. While the jury was out in deliberations, it asked a question of the judge: Can the jury give the employee more money than the employee was requesting. Obviously, the jury came back and awarded the employee everything he had requested.

This is just one of many types of cases Brian handles. The laws are constantly evolving and changing. Today this employer's policies may not be considered definitive or mandatory and thus may not alter the employee's at-will employment. Each case is different and whether an employer's policies limit its ability to terminate an employee at-will is fact specific.

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