Employee Handbooks and Policy Statements: from Gratuities To Contracts and Back Again

Abstract

This article is part of the Labor Law Group’s commentary on the recently adopted Restatement of Employment Law and focuses on Chapter 2 which addresses the legal significance of employee handbooks and disclaimers. Professor Befort argues that the Restatement does not adequately account for legitimate employee expectations in outlining the law with respect to the enforcement of employee handbooks. He is also skeptical of the Restatement’s adoption of the theory of “administrative agency estoppel” in deciding what handbooks to enforce, a theory for which there is no support in any American jurisdiction. Moreover, he argues that, the Restatement’s automatic endorsement of disclaimers without a fact specific analysis of employee expectations is inconsistent with the Restatement’s estoppel theory of enforcement and the weight of scholarly commentary. Professor Befort does not believe that the Restatement should give determinative weight to the insertion of boilerplate disclaimers in new and revised handbooks without regard to the overall promissory tenor of those documents or the reasonable expectations they might create.

Keywords: Employee Handbooks, Policy Manuals, Disclaimers