Chp 3 Campbell
Erik Sorensen and Kathryn Mears
Pages 57-62
Introduction (57-58):
Companies have a right to set rules, but it is not “absolute.” Meaning, certain rules—regarding safety, health, the rights of employees and consumers, liability, and contracts—are regulated by the government.
Legal advisors are important to consult in case of specific questions. Be careful to use their advice and your writing expertise to write documents.
What you can and will be sued for (58-59):
“Unclear, imprecise, or poorly worded procedures”
Example: a user being injured because instructions weren’t clear
Intentional or unintentional violation of the law
Example: a policy regarding just women can be viewed as gender discrimination
Policies and procedures that “restrict the organization’s ability to act”
Example: policies that contradict each other
Inconsistent enforcement of policies or not exercising certain policies
Example: firing someone for not following a policy that other workers don’t follow. A handbook may state that employees are allowed 2 late arrivals per week, but the manager doesn’t enforce this. Then, an employee is fired because of not following the policy.
Not stating the consequences of noncompliance
Example: a warranty is invalid for a mattress if it is stained, but it is not stated on the warranty terms.
“Incomplete, in improper order, or inaccurate”
Example: a user is injured because the order of the directions is reversed.
Barriers (59):
Language and literacy problems
The issuer must make every possible effort to be clear in communication. This may mean translation is necessary.
The manual must be written at an appropriate reading level for product users.
Types of Violations (59-63):
Tort
“A wrongful act”—an act that violates a law and the violated can be sued for it.
Example: if your manual violates a safety law
“Public policy:” acts that may not be against the law, but participating in them is against the public interest.
Policies that violated public policy can be grounds for a lawsuit.
Example: an employee has jury duty and must miss work. The organization can’t punish this for any reason but it serves the public interest.
Negligence
A type of tort
“Failure to exercise reasonable care in instances where such care is a duty under the law”
Example: Writing operating procedures that are inaccurate and could result in injury
Related to product liability and operating procedures. An organization is “obliged to give clear, complete, and reasonable instructions for installation, operation, maintenance, and repair.”
Informal and unwritten rules can still be grounds for lawsuits if problems occur.
Not having “responsible policies” can lead to negligence also.
Breach of Implied Contract
Policies and procedures are considered contracts and must follow the same law
Why it is: stated policies and established procedures can create the right to continue employment if they lead employees to believe that the aforementioned are: Established and Official Rules, Fair Rules, Uniformly apply to all employees
Where it applies: Handbooks which are thought to be well constructed and thought policies about how to conduct matters. Courts will hold you responsible for your statements about them
Basically anything you say you will do means you will do it, you can inadvertently create a contract
Good Faith requires to look in to any matter involving an employee without a history of troubles and then acting appropriately concerning history
Disclaimers
o They can protect your company by saying that policy and procedure are not contracts and are subject to change at any time at managements discretion
o Another example is saying that certain warranties do not apply if other certain conditions were not adhered to
o Covering your rear end
Manual vs Handbook
o Handbooks may deal with information distributed to a wide audience while a manual is considered to be aimed more specifically
o In any case make sure there is a place for employee to acknowledge that he/she understands handbook or manual
Appeasing the Courts
o Can’t all be lawyers
1. Operate in a safe, reasonable manner – develop policies and procedures that are accurate
2. Communicate them clearly – Tell people what they are supposed to do and how
3. Enforce the policies and procedure uniformly – be consistent in any enforcement of violations
Protecting Yourself
o No guarantees in the courtroom
o Two goals – minimize legal exposure and be in a good position to defend yourself in the event of a legal matter
o Be conservative in creating
1. Content is appropriate, sufficient and accurate
2. Writing is clear, understandable and precise
Courts hate guessing games, the more precise and accurate the easier it is to defend your actions regarding the enforcement of policies and procedures.
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8 comments:
Thankfully, I don't have to deal with the legal aspect of procedure writing directly in my job, but my work unit does deal with many privacy issues as they pertain to releasing medical information to insurance companies. Unfortunately this chapter rang all too clear for me some of the hurdles we face when attempting to be clear and accurate and comply with all of the Fed Regs.
With all of the new controls put into place with accounting (thanks Enron!), that is another place where I have really seen a lot of changes in legalities. It's pretty overwhelming sometimes to make sure your backside is covered.
This was an intersting chapter, and opened my eyes to a few things. And as Mary points out, I am also glad that I do not have to deal with the legal matters of procedure writing. But the most important thing to remember about procedures and policies is they are only as good as Management enforces and interprets them in any given situation.
Take for instance a policy for sick leave that states you may take a paid sick day to take your parents to the Doctor and your Manager interprets this to mean your in-laws too. Then a new Manager comes on board and interprets it to mean your parents only. Procedures need to be consistent and clearly written so that everyone interprets them and enforces them the same.
A lot of personnel at the plant I work at openly state that we have to many procedures and policies, I stronly disagree with them. Without these documents in place, the chance for lawsuits would be enormous and the health and safety of our employees and customers would be risk.
Robin's post is right on the money regarding company policies, specifically as they relate to interpretation by those in charge! I've found the same thing where there are different enforcement/interpretations even though everyone supposedly adheres to the same policies from the same employee handbook.
This practice of interpreting rules/laws carries over to the legal side of my job. I've found that the attorneys in my office have to be experts in legal issues about workers' compensation in many different states and there are many ways of interpreting every aspect of litigation as each state has its own set of regulations. Court rulings usually favor the legal team that is the most persuasive with its interpretation.
Even though we all read the same rules in a policy and procedure document, we interpret them according to what we know. That's why it's so important to write as clearly and precisely as possible and try to anticipate potential areas of misinterpretation which is very difficult!
An interesting point made was the part about using the term user's guide instead of handbook or manual to avoid being misconstrued as a promise or contractual obligation. It makes sense though; user's guide implies guidelines instead of absolutes, as stated in the chapter.
Regardless of how a manual, handbook, or user's guide is written, there is always the possibility of misinterpretation. I can look at a number of our company's policies and see where you can understand it to mean one thing while someone else might consider a different meaning. It doesn't mean the policies weren't written well; it is just a fact of life, I believe, that company policies will not be able to encompass every interpretation or meaning, but try to come as close as possible.
When I was interning at James Tower, I had to make sure that I was complying with all policies and procedures related to writing documents. Because the documents were to be used outside the company for business communication purposes, I had to write disclaimers at the end of my documents to let them know of confidentiality, and other legal issues. I think this chapter is very important to a technical writer and even editor because we have to be aware of legal and public policy laws/statements that we might not be aware of. Even if we do not know the law exists, we can still be prosecuted by anyone. Also, at my currentjob they are not always consistent in enforcing policies and procedures. Some employees are allowed to do things others aren't. In this regard they need to be careful if they do fire someone. Aka, the cell phone policies and open toe shoe policy. I've seen people in my department go barefoot without them saying anything, but when I wore sandals they did. we also have to deal with copyright issues at my current job. If someone sends us a google map they cannot use it in their wedding pocket invitations because of the copyright permission laws.
This chapter was pretty interesting. My department is actually in the middle of a possible legal problem right now because of a documentation issue.
Some writers may believe they do not have much to do with legal issues, until the manual they wrote gets the company in trouble.
Policies and procedures are so important. I agree with Robin, there can't be too many in the workplace.
This chapter makes me rethink some of the writing I have made in my Happy Dans handbook project. One would be my two pages dedicated to safety and involving gas spills and proper procedures for clean up. When I wrote it the first time I wasn't really thinking of how actually dangerous it is and how possibly the owner could get in trouble if his employees were misguided, by me. I will be doing some more research on this section and looking at local laws before even showing it to him. Other than that, I liked the part about describing the differences of manuals and handbooks. I am probably going to change my title page from handbook to user guide as mentioned in the book. An acknowledgment statement is also a good idea.
This chapter got me wondering how many lawsuits have been done over silly things in manuals? Not just product warnings such as "this superman costume will not grant your child the ability to fly", but closer to "The manual never stated that the cd drive couldn't be used as a cup holder". I'd have to imagine that it's significant.
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