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Tom Delmar 508.822.2000

Tom Delmar

Most employers maintain a company handbook, employee manual, or something similar. This handbook will be provided to employees when they start their new job and often outlines the rules of the job-place, leave and vacation policies, and the employer’s expectations. Sometimes, these handbooks will outline a progressive discipline procedure, and rules regarding how an employee should resign or how the company may terminate an employee’s job.

Employers oftentimes break their own handbook rules. They may not provide a written reason for termination, or not follow their own progressive discipline policy. This can be quite frustrating for employees, and unfair, as employees rely on the handbook to follow procedure and expect the employer to similarly follow the handbook rules.

Unfortunately, with only extremely rare exceptions, it is not illegal for an employer to violate their own handbook policies. In other words, there is no lawsuit that can be filed against an employer for terminating an employee in violation of the company’s own handbook. This often comes as a surprise to most employees as it seems counter-intuitive. This was not always the case, Massachusetts courts once upheld a company handbook as creating a contract between the employee and employer, and held that where the employer breaks the contract, say for example by terminating an employee after one warning where the handbook requires three warnings, the employee could bring a claim for breach of contract for wrongful termination.

Employers responded to courts upholding employee handbooks as contracts by adding a disclaimer to their handbook which identifies that the despite the rules outlined in the handbook, the employee is only an “employee at-will,” and nothing in the handbook is meant to create a contract with the employee but instead to be used as non-binding guidance. See Keches Law Group’s discussion on at-will employment at this link. This disclaimer is often conspicuously displayed on the first few pages of the handbook. Court have upheld the disclaimer, therefore preventing employees from filing suit for an employer breaking the handbook policy.

The short answer to the question posed in the title of this article is no, an employee cannot sue their employer for violating the company handbook. However, employees can still take away a few things away from their handbook that they can use to their advantage. First, see if the handbook does not include the disclaimer described above. If the handbook does not include the disclaimer, then the handbook may be an enforceable contract. Do note that this is rare, employers are careful to include this disclaimer. Second, even if the handbook does include the disclaimer, evidence that an employer is not following its own handbook policies in how it treats employees can be used as evidence that the employer has some illegal discriminatory motive. Although breaking the handbook rules is not illegal, terminating an employee based on an employee’s race, sex, national origin, color, age, religion, ancestry, disability, or sexual orientation is illegal. An employee can use evidence that they were treated unfairly pursuant to the handbook rules as evidence of the employer’s illegal bias. For example, if an employer has a progressive discipline policy for employees, but terminates an employee without following such policy, the employee can use this as evidence that the employer failed to follow its own policy based on their disability, or religion, or other protected class listed above.

If you have been terminated, and feel your employer acted in an illegal manner, feel free to contact the attorneys at Keches Law Group for a free consultation.

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