Revise Employee Handbook for Hot Button Issues

The employee handbook can be one of your most important documents as an employer. It is used to introduce the organization to employees, inform them about corporate policies, mitigate risks for the employer and avoid unwelcome administrative scrutiny. Despite all this, many employers create it and then forget about it.

A well fashioned employee handbook can affect litigation outcomes. Not only do you need to update your handbook, you need to communicate policy changes to your employees. At a minimum, do an annual review. Communicate any needed revisions to your employees either through a formal employee handbook update or as a stand-alone notice of policy revisions. For employers operating in multiple states and localities, consider state-specific addendums. Make sure to capture employee acknowledgments of all such notices.

If you haven’t reviewed it in a while, you may want to check that you do not run afoul of recent workplace judicial, legislative and regulatory changes. Here are some hot button areas to focus on:

1. Does your handbook include a non-retaliation policy? Almost half (45.9%) of all Equal Employment Opportunity Commission (EEOC) discrimination, harassment, wage & hour, etc., cases filed in 2016 contained a claim alleging retaliation. Retaliation is broadly construed and does not depend upon the merit or success of the underlying claim. Your employee handbook should contain a separate prohibition against all forms of retaliation as a standalone section and should specify who the policy pertains to: complainants, witnesses, investigation participants and those associated with the complainant. You should also include the prohibition in other applicable sections.
2. Misclassification of employee status as exempt or non-exempt remains a hot topic. Make sure non-exempt employees truly meet the definition of non-exempt. Are your job descriptions accurate? Bestowing the title cannot be a ruse to avoid overtime payments. Review the employee handbook for policies that impact non-exempt employees, such as working during lunch breaks, unauthorized overtime, working before or after regular hours, complaint procedure for wage/pay issues, etc. A big area concerns use of mobile devices during non-work hours. If you have policies that prohibit working after certain times or require approval to work overtime, make sure your human resources (HR) department is enforcing them consistently. It may seem counter-intuitive, but you may have to discipline an employee for answering emails during non-working hours. Ensure that your policies are clearly laid out.
3. Disability, pregnancy and religious reasonable accommodation policies must apply to both employees and applicants. This area impacts both Leave and Equal Employment Opportunity (EEO) policy and should be included in both sections of your employee handbook. Also review whether your policy permits an interactive process that addresses the needs of the worker as well as the employer’s business needs when making accommodation request determinations. Employees are not entitled to the accommodation of their choosing and employers are not required to agree to those that impose an undue burden on their business. Managers should be trained to recognize and respond to accommodation requests. Although the employee or applicant should make the request, some employers have been found to be “on notice,” meaning they have been cited for not recognizing and accommodating an employee’s need before it was requested.
4. National Labor Relations Board decisions have impact beyond a union workforce. If your employment practices interfere with an employee’s right to engage in protected concerted activity you could have risk and the areas may include some you have never thought about. Some areas recently impacted include employee use of a business’ email system and social media policies. Talking to another employee about a work problem or joining together to make changes in their wages, hours or working conditions is protected activity. Do you prohibit employees from discussing their salaries? Confidentiality provisions prohibiting such discussion about salary or other terms and conditions of employment might be unlawful. Can you discharge an employee that uses profanity to describe a manager or his family on the employee’s Facebook account? The answer to this question depends on local laws, etc. Other areas include the use of email for non-business reasons, employee conduct policy/disrespectful or insubordination, social media, restrictions from leaving work. You could be in violation and your rule deemed unlawful.
5. New protected characteristics may have been added since your last update. These are ever expanding and particular to a locality. For instance, New York City adds victims of domestic violence, sex offenses or stalking; consumer credit history, unemployment status, caregiver status. Make sure that you are training your managers on all protected characteristics for EEO, non-discrimination and harassment policies.
6. Paid time off and leave policies are changing. Is your Family Medical Leave Act (FMLA) policy current? Does it include leave for military related reasons, incorporate your state/local disability laws or intersect with your other paid time off policies? Sick leave laws may impact your policies in this area.
7. State and local laws can add requirements. California, New Jersey, Rhode Island and New York all have paid family leave laws. New York’s Paid Family Leave Law is effective Jan. 1, 2018, and will be phased in. It guarantees full and part time employees (employed for six months out of the year or more) up to 12 weeks paid leave for certain events. There is no small business exemption, prescription for a written policy and notice posting requirements. Employers may want to explore securing additional insurance. New York City has an Earned Sick Time Act, which requires employers with five or more employees to provide up to 40 hours of paid time off to address their own or a family member’s personal health issue. It prescribes what must be in your written policy. State and local “ban the box” laws restrict the extent to which an employer may be able to use criminal background checks in the hiring process. Is your hiring process compliant?

Consulting with an attorney or compliance professional can assist you in determining whether your employee handbook passes muster.

Lorraine D’Angelo

Lorraine D’Angelo, a nationally recognized expert on legal and regulatory risk management, is the president of LDA Compliance Consulting Inc. She has more than 25 years of experience in the construction industry, including a recent tenure as senior vice president for ethics and compliance at a global construction company. D’Angelo is an accredited ethics and compliance professional and a leading expert on small, women-owned, minority and DBE matters, programs and policy implementation. For more information, contact her at (914) 548-6369 or Lorraine@ldacomplianceconsulting.com.