Can an employer violate their own policy?

Recently on our legal forum a user asked, “I have had some difficulty with my employer. I am wondering if an employer is able to violate policies and procedures they have documented via the employee handbook?”

Why does an employer have policies and procedures?

Most companies have created some type of handbook or written policies and procedures. These policies and procedures may be documented in an employee handbook and distributed prior to employment or in conjunction with an employee training session.

The purpose of the employee handbook is to document not only the employee’s expectations of the employees and how they should conduct business, but also the expectation of the company and the rights of every employee.

Unfortunately, although the employee handbook may outline the expectations of both the employer and the employee, generally, the terms of the handbook are not considered a “legally binding contract,” and certain terms outlined within the handbook may be changed at the discretion of the employer.

In fact, it’s not unusual for the handbook to clearly state that the handbook it is NOT a binding legal contract or to list specific situations where the employer may have the legal right to choose not to follow the terms of the handbook.

Policies which may not be violated

Although the employee handbook is generally not considered a binding legal contract with an employee, there are certain policies and procedures which cannot legally be violated by an employer (regardless of whether or not it’s contained in the handbook).

For example, employers are barred from violating federal laws, including those which prohibit discriminatory actions with regards to employment, hiring, and firing. Employers are also barred from disregarding certain employee benefits such as employment pay, overtime pay, health care benefits, and Family Medical Leave (FMLA).

So when you ask whether or not your employer can violate their own policies or procedures it really depends on what type of policies you are referring to and whether or not the violation is a violation of the law.

For example, if your employer is failing to pay overtime to you and your position is not exempt from overtime pay, you may have a legal right to challenge this violation. Additionally, if your employer is treating you differently because or your age, your race, your sexual orientation, or your disability this could be considered illegal- whether or not the policy is contained in the employee handbook. In this case, you may also have the legal right to challenge this violation.

What should I do if employer violates their policies?

If you believe your employer is violating their own policies the first step is to determine if their violation is a violation of the law. If it is, you can report the violation to the appropriate regulatory agency.

For example, if your employer is violating OSHA safety regulations you can contact the Occupational Safety & Health Administration (OSHA), which is part of the United States Department of Labor, and report the violation.

In most states, if you are fired for reporting the illegal action to a regulatory agency, you should also have protections against wrongful termination. In fact, you may be able to file a wrongful termination suit against your employer if they do decide to fire you.

If the violation is not a violation of the law, however, you may not have legal recourse. In this case it may be best to discuss your concerns directly with your employer.