With 2017 around the corner, it’s time to review and update your employee handbook, if you haven’t already done so, to ensure it is legally compliant and reflects the latest developments affecting HR.
There are a number of significant legal changes, especially on the state and local levels, that have or will have a substantial impact on workplace policies. An updated handbook is a critical tool for communicating workplace policies on employee conduct and performance, and can also serve as evidence and may minimize employer liability in case of a lawsuit. The following policies may need to be revised or added based on recent changes:
State and local EEO laws have been expanded to cover new and emerging protected classes (i.e., pregnant women, breastfeeding women, military members, certified medical marijuana users, caregivers). Further, some laws now protect workers who are family members or associated with individuals in a protected class.
Speaking during an XpertHR webinar on employee handbooks, Littler attorneys Chris Cobey and Jill Lowell stressed the importance of updating handbooks with the latest reasonable accommodation requirements based on pregnancy, religion, disability, sexual orientation and gender identity, and any other protected categories under federal, state and local laws. Reasonable accommodation policies should also set forth the process for requesting such an accommodation and the circumstances under which an accommodation may be provided.
Employee handbooks should reflect the latest leave laws such as paid sick leave, safe leave, organ donor leave, or leave to serve in the military or National Guard. Under recently-released EEOC guidance, employers may also be required to provide leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) if it would not create an undue hardship.
Additionally, Cobey and Lowell recommend that an employer should make sure leave of absence policies are detailed, narrowly tailored and avoid providing for automatic termination.
A number of states and cities have recently strengthened their equal pay laws to promote pay equity and transparency. Many new laws explicitly prohibit employees from banning salary discussions.
Along similar lines, the EEOC is focused on eradicating wage discrimination and the revised EEO-1 Report will collect information on compensation and hours worked. An employer should be sure to update employee handbook policies that may be affected such as those on discussion of wages or EEO issues.
Employee Health and Welfare
Policies regarding employee health and welfare should be up to date with the latest laws and trends. For instance, an employer should make sure that its smoke-free workplace policies extend to e-cigarettes and tobacco substitutes as required by some states and cities.
As for the advent of recreational and medical marijuana state laws, employers should remember that marijuana use is still prohibited under federal law. Thus, these state measures should not deter employers from implementing a drug-free workplace prohibiting drug use in the workplace or during working hours.
The Defend Trade Secrets Act (DTSA), enacted in May 2016, standardized and strengthened employer remedies and protections with respect to trade secrets and confidential and proprietary information. Among its provisions, the DTSA provides immunity to whistleblowers who reveal a company’s trade secrets to the government as part of any violations they report in order to encourage employees to voice any concerns about illegal or unethical conduct.
However, an employer is required to advise employees about this immunity in trade secret confidentiality contracts or agreements. As a result, an employer should make sure that any confidentiality policies or provisions are updated accordingly.
Social Media, Electronic Resources, Mobile Devices
In an increasingly digital society, it is critical to have policies in place regarding social media, electronic resources and mobile devices. Cobey and Lowell suggest informing employees that they have no expectation of privacy in social media, email etc. on the employer’s network or when using the employer’s equipment and may be subject to lawful monitoring.
Additionally, safe driving policies should be updated to prohibit the use of mobile devices while driving and provide for the safety of employees and third parties on the road.
National Labor Relations Act (NLRA)
It is important to make sure that an employer’s policies comply with the National Labor Relations Act (NLRA) and do not unnecessarily encroach upon the right of both union and nonunion employees to engage in protected concerted activity and collectively discuss wages, hours and working conditions. Therefore, Cobey and Lowell advise that an employer will need to review its policies on:
• Employee speech;
• Social media;
• Contact with the media;
• Employee communications;
• Conflict of interest;
• Employee conduct towards the employer/supervisor/co-workers/third parties;
• Intellectual property and employer logos;
• Solicitation and distribution; and
• Photographs and recordings.
It’s crucial that such provisions are carefully drafted, and not overly broad or ambiguous. Blanket rules should be avoided.
For more in-depth information, review How to Update an Employee Handbook for 2017.