Well, my post about the Los Angeles Times article on their new employee handbook seems to have set off (or at least contributed to) a firestorm throughout the web. Some of the reaction seems off-the-mark, though.

Comments: The Good, The Bad and the Ugly

The overwhelming majority of mail I received is in agreement with my comments on the handbook, but I also received the most hate mail for any post I have made in the past year. For example:

I’d like to see the legal system so jammed with lawsuits and uncollectible (sic) judgments that it fails altogether. Maybe then we could get out from under the thumb of the scum sucking lawyer filth who rule our lives. I support the kind of tort reform that would bankrupt 95% or more of attorneys.

However, I did actually receive some civil and thoughtful disagreement, most of which can be summed up by an anonymous comment that reads:

[T]hat "gobbledygook" that can be read and understood by 99% of the population is better than "gobbledygook" that is incomprehensible to 80% of the population. A legal system that is incomprehensible to the vast majority of those to whom it is supposed to apply is an incredibly bad system.

I agree with the second sentence of this comment, but to me the first sentence refers to a non-existent problem with employee handbooks. Generally these handbooks contain little (if any) legalese at all, because that would simply defeat their purpose.¹

Good Handbooks Have NO Gobbledygook

A post by Andrew Mitton at his new blog Legal Frontier that discusses the following provision as an example:

5.1 You may want to think twice before you enter into an intimate relationship with a co-worker. When you start, it might seem like a good idea. It's when you stop, or the wrong people find out (and they will) that you could discover that perhaps it wasn't.

While I did not originally comment on this provision, Daniel Schwartz at the Connecticut Employment Law Blog (an employment law defense attorney) has expressed concern over this provision. Mr. Mitton, on the other hand, praises the Tribune's provision for not having "wherefores, the herebys, and the all-encompassing list" of rules against behavior.

However, under the Tribune's provision, the company is refusing to take the position on the issue and the policy has no "teeth". If they want to terminate an employee for violating it, all the company can say is "we told him he should 'think twice'", when they should have made it a rule.

You might wonder to yourself "Ok, fancy lawyer guy, how would YOU have written it?" Alright, I will give it a shot:

5.1 The company discourages intimate relationships between co-workers and prohibits such relationships between supervisors and subordinates.

This is a clear statement of policy that the company can point to when an employee refuses to follow the rules and must be terminated. It contains no legalese and, in my opinion, CAN be understood by 99% of the population.

The Tribune's provision also does not prohibit relationships between supervisors and their subordinates, which are NEVER a good idea to allow. When the relationship sours, it can lead to sexual harassment suits and even if it does not go bad, employee morale can plummet when they think the subordinate is getting favorable treatment from the supervisor.

Of course, it is possible that the Tribune does not wish to prohibit relationships between supervisors and subordinates. It is also possible that instead of discouraging co-workers from having intimate relationships with each other, they simply want to make a public service announcement suggesting they "think twice". If so, then I suppose this provision accomplishes its goals.

The Reality of Typical Employee Handbooks

The public might be surprised to know that even most lawyers are opposed to legalese and overly complicated language (myself included). In fact, most law students today are taught not to write in legalese and to use plain English. Many jurisdictions (including the federal courts) are completely rewriting their rules to remove legalese and make them more clear for laypeople.

I have probably read close to 1,000 employee handbooks in my career and I do not recall ever seeing one written in legalese using "wherefore's" or "hereby's". In fact, using legalese in an employee handbook may even be as bad an idea as the Tribune's approach.

The main purpose of handbooks is to put employees on notice of what is expected of them. In litigation, the employer would have a tough time justifying termination of an employee for violation of a handbook provision so complicated the employee could not have been expected to understand it.

While I have seen many handbooks that are poorly written and difficult to understand, this is almost always because the employer did not consult a lawyer about it not because they did.

1. Employment CONTRACTS, 401k, Health Insurance, and similar documents DO have this problem, though, and I agree that they should be clearer. [↩]

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