This chapter covers the legal implications and considerations of writing policies and procedures.
Basic Overview
It is important to understand how statute and case law may affect your policies and procedures (P&P). It's not necessary to be a lawyer, but you should run any questions by your legal advisor.
You Can and Will Be Sued
Problems can occur when:
- "Procedures used by customers or employees are unclear, imprecise, or poorly worded"
- "Your policy or procedure violates some law or legal precept, intentionally or unintentionally"
- "The wording of your P&P restricts the organization's ability to act"
- "You have written P&P but don't use them or don't enforce them consistently"
- "You fail to state who is responsible for or what the consequences of noncompliance are"
- "Your policies or procedures are incomplete, in improper order, or inaccurate"
(Campbell, 58-59)
Some employees may have difficulty understanding your P&P due to language barriers or literacy problems. As the writer, you have a special obligation to help them understand, either by writing at an appropriate reading level or by offering translation.
Types of Violations
A tort, or an act that violates a law, can occur if your P&P violate safety regulations, fiduciary laws, fraud statues or public policy. Public policies are actions that may not be technically illegal, but "are recognized as being in the public interest."
Negligence is often more of a concern when writing procedures, where there are liability concerns or the possibility of injury or death due to poorly written operating procedures.
Breach of Implied Contract - Because P&P, whether written or verbal, can be considered an "implied contract", violating them can leave you open to prosecution for breach of implied contract. These cases often involve disciplinary or termination matters.
Disclaimers
Disclaimers can offer some protection. For example, a handbook or manual might contain a disclaimer that states that the "contents may change and are not contractual."
Manuals vs. Handbooks
The difference between the calling something a manual or a handbook may seem insignificant. However, from a legal standpoint, a "handbook" is often considered to be more widely distributed than a manual, which may imply that it can be considered contractual. The term "user's guide" implies that the contents contain guidelines; it is being used more often since the term avoids the appearance of making promises or implying contracts.
What the Courts Want You to Do
Businesses are expected to "operate in a safe, reasonable, and fair manner." They are expected to clearly communicate and enforce the P&P.
How to Protect Yourself
To avoid lawsuits, it is important that the P&P are well written, understandable, and accurate. They must follow laws and regulations and should contain disclaimers and words that express management's right to make changes and take alternative action, if necessary. The rules for noncompliance should be articulated and followed consistently. Informal and written rules should also be considered.
Other issues:
You can be accountable in a court of law for Informal and unwritten rules.
Old, outdated P&P can still get you in trouble. It's important to keep your P&P updated.
10 comments:
I wish that Campbell would have covered a section on the content areas that are affected by legality issues. There is a list of them in the Tools and Resources section at the end of the chapter, but I don't remember reading anything about the affected areas, aside from pulling them out of examples. I felt the focus was put on HR issues, and though that is the obvious choice for where legal matters lie within P&P, I would've liked to have learned more about the other areas that are affected.
I thought that this chapter brought up good points on writing P&P on a legal basis. Since we are in the midst of writing our own P&P we can follow the procedure set forth in the book. Our P&P is aimed at HR and therefore is helpful, but if a person has a different issue the chapter needed to cover a broad area more effectively.
I think the safest way to prevent a lawsuit on the legality of the writing of any policy or procedure is to hire an attorney to go over the document.
I like this book for the bulleted lists, they get right to the point and the explain the problem or solution plainly.
I completely agree with Robin. The book is very straightforward in its directive.
I'd enjoy talking about how ambiguity (as discussed in chapter one) fits the directive of this chapter. My interpretation is this--If you can't lock into the meaning of a statement or policy but use the catch all disclaimer you then have covered your back side and done your job. This approach leaves less room for open ended interpretation. Disclaimers simply allow the company to avoid the unforeseen. The tricky part, in my opinion, is to seem forthright and honest in your disclaimer wording so as to make it not appear as the "easy out." I'd like the reader, user, or the one to whom the rule is directed to understand that in the event of a problem we did try our best to put forth a rule or procedure that was for the good of the end user.
Although I wasn't looking forward to reading this chapter (it sounded incredibly dry), I thought it turned out to be quite interesting because I had never read anything about this topic before, and it brought up a lot of interesting issues that I had not previously considered, not having any experience in legal matters. In addition, Campbell does a good job of using her own advice to be a "word miser," which makes such fact-filled reading easier to absorb. The resources at the end of each chapter are useful not just in and of themselves, but because they are presented as references, rather than being lumped in with the text, and the reader can refer to them when they are needed.
This info was really helpful for our class project. Also, it is interesting how we as technical writers can write procedures for awhile and not even realize that a)it is a procedure, b) there are easier techniques of creating a helpful procedure and c) that there can be legal implications if a procedure is not written well. This creates a sense of urgency for us and helps us to see importance in what we do through our eyes and the eyes of others.
Like the other commenters so far, I noticed an HR slant to this chapter. I, too, would like to have seen a broader scope of scenarios. For instance, a discussion of the legal differences between an employee P & P manual and a manual intended for customers would have been nice. The policies and procedures that govern the staff at a gym are completely different from the P & P's that govern the behavior of the gym's clientele. How are the legal issues the same or different?
On the other hand, Campbell continues in her style of direct, concise instruction. Her writing is very easy to digest, and the material she does cover is well stated and valuable.
I find the tip sheets at the end of the chapter helpful. Campbell's Legal Tip Sheet (3-1)at the end of the chapter does include a list of content areas affected by P&P legal issues in addition to HR and financial including health and safety, operational, product and consumer, and quality assurance. I wonder how ISO documentation has helped (or some might say hindered) procedures to be written clearly and concisely, and most importantly, be kept up to date. My husband worked at a plastics company in Mankato where internal audits were a necessary procedure in keeping ISO certification. The auditors would thoroughly read and follow procedures to see if the process implemented actually matched the written procedures (walk the talk). I would have to believe that if performed properly, the internal audits would help keep procedures accurate. My observation is second-hand, however, and it is quite possible others directly related with ISO may have quite a different opinion.
Legal issues when writing P&P are very important to consider. Writing P&Ps without any regard to the legal implications would not be smart, and I think that it's very important that before anything from wherever you work or whatever type of contract work that you're doing, that any type of legal issues are resolved beforehand.
I once worked for a company that had its own on-staff lawyer that worked part-time to take care of those types of issues. I think it was a good precaution for them to take, since they were a healthcare company and had to deal with things like HIPPA issues and other things, so it was very beneficial for them.
I like Campbell's own disclaimer at the beginning of this chapter about "a detailed description of all the legal issues that affect policies and procedures would take hundreds of pages, and only your lawyer would read it anyway." She is writing about the legal aspects of policies and procedures (just briefly) and even she is advising us to consult a legal advisor for specifics. :) Point taken.
Post a Comment