Have you reviewed your handbook recently? Over the past few years, there have been so many court and National Labor Relations Board rulings, changes in state or local laws and presidential executive orders that it’s been difficult to keep up with all the changes. However, here are some highlights along with a checklist of key policies that should be included in your handbook.
- Sexual Orientation & Gender Identity – Although courts are still divided on the issue, many local and state governments have adopted laws prohibiting discrimination based on sexual orientation or gender identity. It is recommended by many attorneys that policies regarding equal employment opportunity, discrimination, and harassment be modified to protect employees from discrimination or harassment based on this characteristic.
- Genetic Information – Although it’s been almost 10 years since this law was passed, many employers neglect to include genetic information in the list of protected characteristics against which they will not discriminate. So, in your policy that says you don’t discriminate based on race, age, religion, etc., slip genetic information into that list.
- Retaliation – In recent court decisions, a number of employers have been challenged on the fact that their harassment and discrimination policies do not include statements prohibiting retaliation. Including language similar to the following can greatly help your organization in a lawsuit:
“The Company will not tolerate retaliation, coercion, intimidation, interference, discrimination, or harassment of or against any employee for making a good-faith complaint of discrimination or harassment or for providing information related to such a complaint. An employee who believes he or she has been retaliated against as the result of making a complaint or for providing information related to such a complaint must report this matter immediately to [identify person or department] or [identify person or department]. The registering of a complaint will in no way be used against the employee, nor will it ever have an adverse impact on the individual’s employment status. Any individual who engages in retaliatory actions will be subject to discipline, up to and including immediate termination.”
- Religious Accommodations – While most employers include a statement that they make reasonable accommodations for disabilities, they frequently neglect to include a statement that they make reasonable accommodations for religious needs. It’s important to let employees know that you do make religious accommodations and how to request them.
- Fair Labor Standard Act (FLSA) Safe Harbor – Although this policy isn’t a requirement, it is highly recommended. By adopting a safe harbor policy that tells exempt employees under what circumstances you may or may not make deductions from their pay and how to report errors, it can help minimize penalties for inadvertently making improper deductions.
- Family & Medical Leave Act – If you have 50 or more employees, you are probably covered by the Family & Medical Leave Act. When was the last time you looked at and updated your policy? Does it include information about Qualifying Exigencies and leave to care for Servicemembers injured in the line of duty? Are you aware that the language that is on the FMLA poster should be included in your policy?
- Employee Classifications – Many employers include a policy in their handbook that defines who they regard as full-time, part-time, temporary and seasonal employees. If your company regards part-time as anyone working less than 40 hours a week or if you state temporary and seasonal employees are not eligible for benefits, you need to include some type of disclaimer that tells employees that these definitions do not affect their eligibility for group health insurance benefits under the Affordable Care Act.
- Measurement Periods – Speaking of the Affordable Care Act, has your company identified what your measurement period will be for variable hour employees? Have you included that in your handbook? If not, you should consult with your broker or health insurer to craft language that can be included in your handbook.
- Domestic Violence Leave – Many states have adopted rules requiring employers to grant leaves of absence for victims of domestic violence. It’s recommended you review your state law so that you can adopt a policy to specifically comply with it.
- Smoking – Many states have adopted laws prohibiting or limiting smoking in the workplace. Employers must adopt policies to let employees know if or where they are permitted to smoke.
- Medical Marijuana – Numerous states have legalized medical marijuana even though it is still illegal at a state level. If your company has a drug testing policy, you should review and revise it to address the issue of medical marijuana. Most state laws do not require a company to recognize medical marijuana as legal and allow the company to prohibit its use; however, you should consult your state’s law to determine if there are any limitations.
- Lactation Breaks – While most employers include policies about general breaks and meal periods, they often neglect to include a policy regarding breaks for nursing mothers. When the Affordable Care Act was passed, it included a provision requiring employers to provide reasonable breaks for nursing mothers. The Department to Labor has published a fact sheet to help you understand your obligations.
National Labor Relations Board (NLRB)
The NLRB merits its own section because of all of the rulings they’ve made over the past few years regarding handbook policies. Regardless of whether or not your business is unionized, with few exceptions, the National Labor Relations Act will apply to your organization. Here are some of the policies you should ensure have been updated:
- Employment-At-Will – Most employers have a disclaimer in their handbook that says employment is not guaranteed and that either the employer or employee may terminate the relationship with or without notice and with or without cause. However, the NLRB has taken it a step further by saying you need to expand your policy to include a statement that there could be an exception to this policy (for example, if the company becomes unionized). Typically, adding a sentence such as “No one other than an officer of [COMPANY] has the authority to make any agreement contrary to this policy. Furthermore, any such agreement must be in writing and must be signed by an officer of the company.” will satisfy the NLRB.
- Social Media – There was a lot of press given to the NLRB’s decision regarding social media policies several years ago. Out of that case, the NLRB approved a policy that has become the standard recommended social media policy that employers adopt.
- Confidentiality – Review confidentiality policies to ensure employees are NOT prohibited from discussing pay, benefits, and working conditions. Additionally, confidentiality policies should provide details as to what information is considered confidential – trade secret information, vendor lists, customer lists, etc.
The NLRB has weighed in on a myriad of areas that are detailed in a General Counsel memo published in 2015. This memo covers additional areas of concern including email, employee conduct rules, restricting of photography and recording in the workplace, restrictions on leaving work, and more.
Executive Orders – Applies to most Federal Contractors
During President Obama’s administration, many executive orders were issued or expanded. At this time, it does not appear that President Trump will issue new orders to rescind these requirements.
- Pay Transparency Non-discrimination Provision – Employers are obligated to notify applicants and employees that the employer will not discriminate against them for inquiring about, discussing or disclosing their pay or, in certain circumstances, the pay of their co-workers. Not only does this have to be posted with your posters, but it also has to be included in your handbook. The specific language to be included can be downloaded from the poster on the OFCCP website.
- Sick Leave – Effective January 1, 2017, federal contractors are required to provide employees with up to 56 hours (7 days) of sick leave each year. To learn more about this requirement, visit the S. Department of Labor website.
Other policies for consideration
- Workplace Violence – With the escalation in incidents of workplace violence, it’s highly recommended that employers adopt policies prohibiting workplace violence. A policy can be crafted utilizing information from the Department of Labor website or by clicking to Workforce.com.
- Driving While on Company Business – Do you have employees who drive on the company’s behalf? If so, have you developed a policy explaining your expectations for safe driving? For example, your policy should include a prohibition against using a cell phone/texting while driving, require employees to follow the rules of the road, prohibit speeding, state that the individual is responsible for any tickets issued, etc.
- Severe Weather – Regardless of your business location blizzards, hurricanes, flooding, fires, etc. can affect your operations. When does the company make the decision to close the facility for inclement weather? Do you pay employees for that closure? If so, for how many days? How do you notify employees about whether or not the facility is closed? All of these questions should be answered in a policy for employees.
- Medical Leave of Absence (Non-FMLA) – If FMLA doesn’t apply to your organization, have you adopted a policy to guide you and employees when someone is pregnant, needs surgery, or is in a car accident? If not, you should consider creating a policy that clarifies under what circumstances and for how long a medical leave of absence will be granted.
- Handbook is not a contract – It is recommended that you include a statement in your handbook that says it is not a contract and that the company reserves the right to make changes as it deems appropriate.
In addition to reviewing your policies in light of the information provided above, you should also review the language of your policies to make sure you aren’t inadvertently creating a liability for the company.
- Just Cause – Using a phrase like “just cause” defeats your employment-at-will statement. Remember, part of employment-at-will is the ability to terminate for no cause.
- Permanent – Using the term permanent with respect to an employee’s job again defeats the employment-at-will policy. Instead of referring to employees as “permanent”, most employers use the term “regular”.
- Probationary Period – The terms “probation” and “probationary” sound like someone’s done something wrong and are being disciplined. Additionally, this could also defeat the employment-at-will policy since there is an implication that once probation is over, they are permanent. Most employers have renamed this the “introductory” or “orientation” period.
- Should – While we want the employer to retain full flexibility to interpret and administer their policy with phrases like “generally” and “typically”, when instructing employees of our expectations, don’t use terms that give them that same flexibility. “Should” means the employee has the option to comply or not. It’s doubtful that you intend to give an employee the option of whether or not to use a guard when you state “employees should use a guard when operating this machinery”, yet that’s what’s been done by using the word “should”.
Frequently, employers look for a list of policies to include in their handbook. Although there is no all-encompassing list, here are some suggestions:
Must haves (your attorney will thank you):
- Discrimination/Harassment/EEO Statement (including reasonable accommodation information, a statement about retaliation, and a complaint procedure)
- Reporting of Injuries
- Pay Transparency Non-Discrimination (federal contractors only)
- Sick Leave (federal contractors only)
- Family & Medical Leave Act (employers with 50+ employees only or public employers of any size)
- Domestic Violence Leave (state specific)
- Smoking (state specific)
- Lactation Breaks
Recommended that you include:
- Meals & Breaks
- Hours of Work/Overtime/Pay Periods
- Employee Classifications
- Social Media
- Voicemail, Email, Electronic and Computer Files Usage
- Dress Code
- Rules of Conduct
- Safety Rules (depending on the nature of your business, this might merit a “must include” designation)
- Drug Free Workplace (including drug testing if appropriate)
- Workplace Violence (including bullying)
- Severe Weather
- Solicitation, Distribution, Bulletin Boards
- Health Insurance
- Life Insurance
- Short/Long Term Disability
- Sick Leave
- Bereavement Leave
- Military Leave
- Jury Duty
- Other Leaves of Absence
While this list isn’t all-inclusive, it does highlight what should be included in a handbook. The final piece is the acknowledgement that we have an employee sign that says s/he has received and is responsible for reviewing and understanding the handbook. The acknowledgement may include a restatement that employment is at will and that the handbook is not a contract and the company reserves to change it at any time. It’s highly recommended that once you’ve drafted your handbook that you have an employment law attorney review it.
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