Employee Handbook New Mexico
Employers are not required to issue employee handbooks. Lukoski v. Sandia Indian Mgmt. Co., 106 N.M. 664, 666, 748 P.2d 507, 509 (1988).
There are a number of reasons that employers continue to issue handbooks, notwithstanding the risk that statements in the handbooks may give rise to enforceable rights in favor of employees.
"Policy manuals provide a means by which an employer can create a clear set of expectations about a given subject; communicate those expectations broadly across an organization; and ensure that those standards are available for application well beyond the time they were created . . . ." Ronald C. Glover, Drafting the Personnel Handbook 11.3 (Mass. CLE 1997).
Formal written policies are perceived to "promote fairness and consistency, guarding against the arbitrary, capricious, and incongruous treatment of similar cases. . . . Such policies . . . help the employer by enhancing worker morale, loyalty, and productivity, providing competitive advantage in the labor market, and minimizing employee litigation." Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 8 P.3d 1089, 1106-07 (Cal. 2000).
Systems of personnel rules serve the goals of increasing both order and employee commitment. Rules provide one method of standardizing employee production and punishing deviations from the standards without depending unduly on the idiosyncrasies of supervisors. . . . Rules also increase employee morale.
By reducing the opportunity for arbitrary supervisory action, rules can enhance the perception of fairness. When coupled with supervisory training and procedures for appealing adverse supervisory actions, rules promote a perception that employees are treated with respect and concern. Henry H. Perritt, Jr., Employee Dismissal Law and Practice 10.4 at 378 (1998).
Employees who perceive that they will be treated fairly by their employer may be less likely to unionize. Stephen F. Befort, Employee Handbooks and the Legal Effect of Disclaimers, 13 Indus. Rel. L. J. 326, 338 (1991/1992) (hereafter Befort).
A handbook utilizing this approach relies on disclaimers and/or qualifying words or phrases to neutralize affirmative representations describing procedural safeguards and substantive standards.
The goal of this approach is "to obtain the benefits of a handbook policy, while avoiding liability that might otherwise arise from promissory language contained in the handbook." Befort, supra, at 348.
Reliance on disclaimers and qualifying words and phrases to negate expectations generated by other statements can be risky; courts have declined to give dispositive effect to disclaimers, reasoning that a combination of disclaimers and promissory statements on the same subject results in a question of fact for the jury. McGinnis v. Honeywell, Inc., 110 N.M. 1, 791 P.2d 452 (1990) (declining to treat disclaimers as dispositive; upholding jury verdict in favor of employee);
Kiedrowski, 119 N.M. at 575, 893 P.2d at 471 (holding that disclaimer did not necessarily override other employer representations giving rise to reasonable expectation of termination only for good cause; reversing grant of summary judgment in favor of employer); accord Strass v. Kaiser Found. Health Plan of Mid-Atlantic, 744 A.2d 1000, 1013 (D.C. Ct. App. 2000) (characterizing statement in disclaimer that handbook is not contract as "rationally at odds with other language in the document"; reversing trial court's order setting aside jury verdict in favor of employee);
Trombley v. Southwestern Vt. Med. Ctr., 169 Vt. 386, 738 A.2d 103, 108 (Vt. 1999) (noting that handbook provisions committing employer to progressive discipline system are sufficient to support jury finding that employer may terminate employee only for cause); Fleming v. Borden, Inc., 316 S.C. 452, 450 S.E.2d 589, 596 (S.C. 1994) (observing that "in most instances, summary judgment is inappropriate when the handbook contains both a disclaimer and promises");
Swanson v. Liquid Air Corp., 118 Wn.2d 512, 826 P.2d 664, 674 (Wash. 1992) (en banc) (rejecting premise that disclaimer "can, as a matter of law, effectively serve as an eternal escape hatch for an employer who may then make whatever unenforceable promises of working conditions it is to its benefit to make");
see also Maureen E. McClain, Employee Handbooks/Personnel Manuals, 625 PLI/Lit. 163, 177 (2000) (prudent approach is to avoid detailed references in employee handbook to disciplinary procedures, rather than attempting "neutralization" by disclaimer).
Reversal because a genuine issue of material fact exists does not require to venture beyond existing law and discuss why employers "continue to issue handbooks," what "policy manuals provide," how "formal written policies are perceived," what goals "systems of personnel rules serve," whether "employees who perceive that they will be treated fairly . . . may be less likely to unionize," how employers use disclaimers with discipline systems to create a give-but-take-back approach, and whether an at-will employment relationship is a contract.
The majority states that "courts have declined to give dispositive effect to disclaimers," ignoring the fact that a disclaimer was given dispositive effect by our Supreme Court in Garrity v. Overland Sheepskin Co. of Taos, 1996 NMSC 032, P12, 1996 NMSC 32, 121 N.M. 710, 917 P.2d 1382. See also Paca v. K-Mart Corp., 108 N.M. 479, 481, 775 P.2d 245, 247 (1989).