11-01-2013
Has it been some time since you revisited and revamped your organization’s employee handbook? If the answer is “it has been awhile,” then chances are that many of the policies are not in compliance with new laws and regulations, as well as changes in your organization’s actual employment practices. Most employers recognize the value of having an employee handbook. A carefully crafted and regularly updated handbook is a useful tool to inform employees of work rules, procedures, expectations and their entitlement to various benefits. It can also help protect against employee complaints and serve as an effective tool to minimize litigation and liability. However, some employers don’t recognize the importance of regularly revising their handbook to reflect the ever-evolving work world. A poorly drafted or outdated handbook can actually be detrimental in many ways, including misleading employees about their rights, responsibilities and benefits, and being used by aggrieved employees to support claims of unlawful treatment in court. In order to ensure that a handbook provides a helpful reference to important policies and does not expose the employer to liability, it is crucial to regularly review handbook policies – at least annually – for compliance with any changes in federal, state or local laws, as well as any changes to actual employment practices. Of course, an updated handbook is only as good as its consistent application and enforcement. Therefore, regular training of managers responsible for implementing and enforcing the policies is also essential.
Some pointers to keep in mind as you embark on this important handbook review:
Are the equal employment opportunity (EEO) and anti-harassment and discrimination policies up-to-date?Anti-harassment and discrimination policies should list “genetic information” as a protected characteristic in order to reflect the Genetic Information Nondiscrimination Act’s (GINA) prohibition of discrimination against applicants and employees on this basis. Employers should also consider including “gender identity and expression” as a protected characteristic given the Equal Employment Opportunity Commission’s (EEOC) 2012 ruling in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, that discrimination on the basis of gender identity constitutes discrimination on the basis of sex under Title VII. Although the EEOC’s position is not binding on courts interpreting the reach of Title VII’s prohibition of sex discrimination, the EEOC will process complaints filed on this basis. Furthermore, at least 17 states and the District of Columbia have included gender identity and/or gender expression in their employment non-discrimination statutes.1 Employers in those states should include this classification in their policies irrespective of the uncertain landscape of the protection under Title VII.
Other recent changes to state and local employment discrimination statutes may include the addition of “victims of domestic violence,” sexual orientation, marital status, unemployment status, personal appearance, and tobacco or other lawful product use as protected characteristics. Policies of employers in affected states and localities need to reflect these changes and should also include a catchall phrase, such as “and any other classifications protected by law.”
Most employers’ anti-harassment policies state that any complaints of harassment will be promptly investigated. However, the policy should not contain a blanket statement requiring employees to keep workplace investigations confidential as the National Labor Relations Board (NLRB) has recently held that such a requirement may unlawfully chill employees’ rights to discuss their terms and conditions of employment under Section 7 of the National Labor Relations Act (NLRA).
In addition, an anti-harassment policy should clearly prohibit harassment on the basis of any protected characteristic, not just sexual harassment. Also, the policy should not be limited to prohibiting “unlawful” harassment because even single acts of harassment that do not yet rise to the legal standard of a hostile work environment should be prohibited.
Does the Family and Medical Leave Act (FMLA) policy comply with the most recent FMLA regulations and more generous state family and medical leave laws? The final FMLA regulations implementing the amendments to the FMLA made by the 2010 National Defense Authorization Act (NDAA) became effective on March 8, 2013. These amendments expanded the FMLA’s qualified exigency and military caregiver leave entitlements in several important ways. FMLA policies need to reflect these changes, which were clarified in the final regulations, including the following: (1) military exigency leave is available to employees with an immediate family member in any branch of the Armed Forces, not just the National Guard and Reserves; (2) military exigency leave is only available if the service member has been deployed to a foreign country; (3) military exigency leave may be taken to care (other than on a routine, regular or everyday basis) for a service member’s parent who is incapable of self-care, including arranging for alternative care, and addressing admissions and transfers to appropriate care facilities; (4) the maximum amount of qualified exigency leave an employee may take to spend time with a service member undergoing short-term rest or recuperation is now 15 days instead of five days; (5) military caregiver leave may be taken to care for family members who are recent veterans, not just current military members; (6) the definition of a serious injury or illness includes not only those that were incurred in the line of duty, but also those that existed before active duty service and were aggravated in the line of duty; and (7) any health care provider, not just those affiliated with the Departments of Defense or Veteran Affairs, may provide required medical certification of a service member’s serious illness or injury.
In addition to making revisions to comply with these statutory changes, employers should remove any statement that employees will be terminated if their absences exceed the maximum amount of leave permitted under the FMLA because the Americans with Disabilities Act (ADA) may require employers to provide a disabled employee with additional time off as a reasonable accommodation.
Additionally, many states have their own family and medical leave statutes which may provide greater rights and leave entitlements to employees than the federal FMLA. Where applicable, employers must ensure that their FMLA policies include these more generous provisions.
Do leave policies reflect other state law requirements? Beyond state FMLA requirements, some states require employers to provide leave for various other specified reasons, including leave for victims of domestic violence to recover from injuries and seek out medical, legal and social services; leave to participate in a child’s school activities; leave for bone marrow and organ donation; and leave for jury duty and court appearances. Paid time off policies need to comply with other state and local law requirements, which may include mandatory paid sick leave, limitations on restrictions of vacation leave carry-over from year-to-year, and payment of unused vacation time upon termination.
Does the background check policy conflict with the EEOC’s guidance on the use of criminal conviction records? The EEOC issued guidance on April 25, 2012, positing that an automatic disqualification of applicants for employment on the basis of criminal conviction history may violate Title VII because it could have a disparate impact on some minority groups. The EEOC recommended developing a written policy and procedure for conducting criminal record checks, which includes identifying the essential functions of a job and determining what specific offenses may demonstrate unfitness for those job functions. Therefore, handbook policies should avoid blanket statements that criminal convictions will disqualify applicants from employment or otherwise lead to adverse employment actions.
Do the social media and other confidentiality-related policies conflict with the NLRB’s recent guidance and rulings? Most handbooks contain policies dealing with standards of conduct, including policies that are likely impacted by recent NLRB guidance and decisions. These policies include those dealing with confidentiality of information, use of social media, and contact with the media and government agencies. The NLRB has recently issued guidance and decisions striking down certain broad policy provisions as unlawfully restricting employees’ Section 7 right to engage in protected concerted activity, including the right to discuss their terms and conditions of employment with each other and third parties. Among the many policy provisions argued to be unlawful by the NLRB’s General Counsel in a May 30, 2012 advisory memorandum were the following instructions to employees:
- To “avoid harming the image and integrity of the company” in their online postings;
- Not to “share confidential information with another team member unless they have a need to know the information to do their job;”
- To be sure posts are “completely accurate and not misleading;”
- That “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline;”
- Not to post “disparaging or defamatory” comments about the employer or its employees;
- To receive authorization before speaking with the media about the employer or its business activities.
The General Counsel advised that these provisions were unlawful because they prohibited a broad spectrum of communications that could reasonably be construed as encompassing protected discussions and criticisms of the employer’s policies or treatment of employees. The General Counsel posited that such provisions must be narrowed, such as by the use of specific examples, so as to clarify that they are not intended to apply to protected Section 7 communications. The NLRB has issued several published case decisions that so far seem to support the General Counsel’s position. For example, in Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012), the Board found it unlawful to prohibit posting statements that “damage the Company, defame any individual or damage any person’s reputation.” In another case, Knauz BMW, 358 NLRB No. 164 (Sept. 28, 2012), the Board found unlawful a policy that encouraged employees to be “courteous, polite and friendly to customers, vendors and suppliers [and] fellow employees” and prohibited the posting of “disrespectful . . . or any other language which injures the image or reputation of the [employer].” As a result of these rulings, employers should clarify ambiguous policy language which may signal to employees that they are not free to communicate about their employment, including the posting of information that may be critical of the employer, supervisors or fellow employees.2
Does your handbook contain a lactation break policy? The Fair Labor Standards Act (FLSA) was amended by the Patient Protection and Affordable Care Act of 2010 to require covered employers to provide reasonable break times for non-exempt employees who are nursing mothers to express breast milk for up to one year after a child’s birth. The amendment also requires employers to provide a location for the employee, other than a bathroom, which is shielded from view and free from intrusion of coworkers and the public. The breaks are not required to be paid, but employers must allow employees to use any paid break time for this purpose.
Does the workplace violence policy reflect state “gun-to-work” law restrictions? Most employers have a workplace violence prevention policy which, among other things, prohibits employees from bringing weapons to work. Some states and localities have enacted “gun-to-work” statutes which restrict employers from prohibiting employees from storing a handgun in their private vehicles while parked on employer property. If applicable in an employer’s state, the workplace violence policy should not conflict with this legal restriction.
Other common handbook review considerations:
- Policies need to reflect current employment practices and procedures. Not only do policies have to reflect legal changes, they should reflect changes in the employer’s actual employment practices. If policies are not consistent with actual practices, this can cause not only confusion for employees and managers, it can provide ammunition to employees claiming discriminatory or other unlawful treatment.
- Avoid implied contract claims. The handbook introduction should explicitly state that it does not create an express or implied contract and that the company may modify the policies at any time. It is also crucial that the handbook contain disclaimers (in the introduction and throughout the handbook in relevant policies, such as a progressive discipline policy) specifying that employment is at-will and can be terminated at any time for any lawful reason. However, the handbook should not state that an employee’s at-will status cannot be changed in any way in the future, as the NLRB has interpreted this language as unlawfully informing employees that they cannot seek to change their at-will status through unionization and collective bargaining.
- Preserve employer discretion. Remove language that unnecessarily limits the employer’s discretion by stating that the employer “will” or “shall” take certain employment actions, or will act within a certain number of days (unless required by law). Many handbooks outline a progressive discipline policy setting forth various levels of discipline (i.e., verbal warning, written warning and termination) for misconduct and inadequate work performance. Some companies choose to provide a list of infractions that may lead to discipline. In this case, the policy should state that it is not an “all inclusive” list. Companies need to also make sure the policy does not imply that an employee will not be terminated until he or she has gone through all of the other disciplinary action steps. The policy should clearly state that the company has discretion to determine when and what discipline is warranted, and may skip any disciplinary step based on the severity of the offense.
- Consider eliminating an “introductory” or “probationary” period of employment. Many handbooks state that new employees are subject to an “introductory” or “probationary” period of a specific, limited time frame, during which the employee’s performance will be scrutinized to determine whether the employee is a good fit for the position. Such a policy can give employees the impression that they are guaranteed employment during the introductory period, or that upon successful completion of the introductory period, they become “permanent” employees or that their performance will not be as closely monitored. Employers can and should monitor and manage employees’ performance throughout their employment, and should preserve their right to terminate an employee at any time for any lawful reason. In order to avoid the undesirable impressions that an introductory period can create, companies should consider eliminating this type of policy. However, to the extent employers choose to maintain an introductory period policy, it should explicitly state that employees remain employed at-will at all times, both during and after the introductory period.
- Use plain language. Try to eliminate policy language that is too technical or uses too much “legalese.” Policies should be written using plain and clear terms.
Regularly updating your employee handbook is crucial in order for it to serve its intended purpose of accurately informing employees of their rights, responsibilities and benefits. Failure to update can have the unintended consequence of the handbook causing more harm than good. Once handbook policies are updated, companies should ensure that every employee has received a copy (preferably via electronic distribution which is the most cost effective, expedient and easiest to track) and signed an acknowledgement that the employee has reviewed and understands the policies, which should then be placed in the employee’s personnel file. Finally, supervisors and managers should be regularly trained about any policy changes in order to help ensure even-handed application and enforcement.