Campbell Chapter 3 - Isn't There a Law Somewhere?

In this chapter, Campbell discusses the legality and consequences of policies and procedures. She starts by stating that as a writer, you have to be familiar with the restrictions imposed by the laws to avoid your organization being sued.

Next, Campbell states some of the reasons you can and will be sued for. They are:
• If the procedures used by customers or employees are unclear, imprecise, or poorly worded.
• If your policy or procedure violates some law or legal precept, intentionally or unintentionally.
• If the wording of your policies and procedures restricts the organization’s ability to act.
• If you have written policies and procedures but don’t use them or don’t enforce them consistently.
• If you fail to state who is responsible for or what the consequences of noncompliance are.
• If your policies or procedures are incomplete, in improper order, or inaccurate.

Campbell then talks about special obligations needed to prevent users from understanding your policies and procedures. These are language barriers and literacy problems. She says that for literacy problems, to make the document written at an appropriate reading level. For language barriers, the document may need to be translated.

Then, Campbell goes on to discuss the different types of violations. The first is a tort, which is simply a wrongful act, one that violates a duty imposed by law, and is grounds for a civil action. Campbell says that you may face court challenges for a variety of reasons including: operational policies and procedures violate safety regulations or pollution laws; administrative policies and procedures violate fiduciary laws or fraud statutes; or if your personnel policies and procedures violate civil right laws or public policy, which refers to actions that may not have any direct statutory protection but are generally recognized as being in the public interest.

The next type of violation that Campbell discusses is negligence, which is the failure to exercise reasonable care in instances where such care is a duty under the law. These claims tend to affect procedures more than policies, but they can happen in either case. They have always been an issue when it comes to product liability because you are obligated to give clear, complete, and reasonable instructions for installation, operation, maintenance, and repair. Negligence can also be found in personnel policies and procedures.

Campbell then goes on to the third type of violation, which is breach of contract. Policies and procedures are considered an implied contract even though they are not signed. The Michigan Supreme Court ruled that contractual obligations exists if the organization creates policies and procedures, then leads employees to believe that they are: established and official rules, fair rules, and rules that are consistently, uniformly applied to all employees. Implied contract claims frequently involve disciplinary or termination matters and are of special concern to personnel policies and procedures. Virtually anything you do or say that could be construed as a policy statement is under scrutiny.

Next, Campbell discusses the importance of disclaimers since users and courts may see your policies and procedures as an implied contract. She says that whatever type of wording you use for a disclaimer, be sure it’s strong, clear, and definite. For internal policies and procedures, a disclaimer should be added that declares that they do not constitute a contract and may be changed at any time. Campbell says that the disclaimer can be placed at the beginning of the handbook, as well as throughout the handbook. For external users, warranty disclaimers and other disclaimers are a means of clarifying responsibilities or consequences.

Then, Campbell discusses the need to update your policies and procedures. Courts expect you to keep people informed of your current standards and rules.

Campbell goes on to discuss the difference between manuals and handbooks. The term handbook may imply information that is widely distributed to a general audience, while the term manual may imply more detailed information that is restricted in circulation to a select audience and is considered confidential. Handbooks may create an implied contract, while manuals don’t necessarily create a contractual obligation to employees as a whole. The term user’s guide is used to avoid contractual obligations because the title implies that the book contains guidelines, not absolutes.

Next, Campbell discusses what the courts want the organizations to do to avoid legal risks. These include:
• Operating in safe, reasonable, fair manner.
• Communicating your policies and procedures clearly.
• Enforcing policies and procedures.

To conclude this chapter, Campbell discusses how to protect yourself. She says that there are no legal guarantees, but you should have the goals of reducing legal exposure and to be in a good position to defend yourself if it becomes necessary. You should focus on two factors: content that is appropriate, sufficient, and accurate and writing that is clear, understandable and precise. These factors fall into six categories:
• Word your policies and procedures carefully.
• Check the content.
• Reserve management’s right to discretionary action.
• Preserve your right to make changes.
• Consider the informal and unwritten rules.
• Use and enforce the rules.