Tips for Updating Employee Handbooks
Like most employers, you probably have an employee handbook. However, if an employee files a claim against your company – for discrimination, harassment, wage and hour violations, unfair labor practices or breach of contract – will your handbook stand up to scrutiny by a federal agency or court? Does it comply with current law?
Because employment laws and regulations (and agencies’ and courts’ interpretations of them) are ever-changing, it is important to review and update the policies within employee handbooks regularly, at least every two to three years. This review process should be a coordinated effort between Human Resources, managers who know what practices are actually in place, and employment counsel. To help you take the first step, below are some questions to ask as you review and update your handbook.
1. Actual Practices. Do the policies that are included in the handbook reflect your actual practices?
2. State Law. Have you checked to be sure that your handbook complies with the laws of all states and municipalities in which you currently operate?
3. Right to Modify Handbook. Does your handbook state that an employee’s at-will status can never be changed? Stating that at-will status can never be modified could be viewed as an infringement on employee rights under the National Labor Relations Act (NLRA).
4. Non-Discrimination Policy/Equal Employment Opportunity (EEO) Statement.
• Does your handbook list "genetic information" as a protected class?
• Do you have employees in states and/or municipalities that protect sexual orientation, and, if so, is this class included in your handbook? What about transgender status?
• Does your handbook include a catchall phrase such as "and other classifications protected by law"?
• Does your handbook include a statement about religious and disability accommodation?
5. Harassment Policy. Does your harassment policy:
• State only that the company will not tolerate sexual harassment, or does it prohibit harassment of any type?
• Identify at least two methods for reporting harassment?
• Make clear that employees will not be retaliated against for raising claims of discrimination or harassment?
• Guarantee complete confidentiality in the reporting and investigation process?
• Require employees to keep confidential the internal investigation process? Employers should not expect complete confidentiality, as that may infringe on NLRA rights. Employees must not be discouraged from discussing terms and conditions of employment.
6. Family and Medical Leave Act ("FMLA") Policy.
• If your company is covered by the FMLA, do you have an FMLA policy in your handbook? The FMLA is the only federal law that explicitly requires an employer who has a handbook to include a policy.
• Has your policy been updated to reflect the 2008 amendments to the FMLA (providing leave for a qualified exigency or for the serious illness or injury of a covered servicemember)?
7. Standards of Conduct. Does your standards of conduct policy:
• Prohibit employees from using offensive, inappropriate, or demeaning remarks?
• Require employees to treat each other respectfully?
• Prohibit off-duty access to work premises without management approval?
• Prohibit solicitation by employees, without limiting it to specific working areas and during working hours?
These standards of conduct have recently been found to infringe on employees’ rights to engage in protected concerted activity. Employees must be able to discuss wages, hours, benefits, working conditions, and treatment by their supervisors, even if it means disparaging the company or being disrespectful of management and co-workers.
8. Discipline Procedures. If your discipline policy sets forth various levels of discipline (i.e., verbal warning, written warning, termination), does it reserve the right for the employer to administer any level of discipline without going through the other levels of discipline?
9. Pay.
• Are your employees located in a state that requires you to notify them of your compensation policies (including bonuses, raises, and applicable pay dates)?
• If your handbook includes a policy for salary deductions for exempt employees, does it clarify that deductions from an exempt employee’s salary will only be made in full day increments (other than FMLA deductions and the first and last day of work)? Does it provide for a complaint procedure?
10. Attendance. Does your attendance policy state that excessive absences may result in termination, without distinguishing between excused and unexcused absences?
11. Vacation/Sick Leave/Paid Time Off ("PTO").
• Does your policy regarding time off explicitly state how much leave is given to each classification of employees, how time off will be accrued, whether time off will be carried over from year to year, any notice requirements for employees, and whether the time off will be paid upon termination?
• Does your sick leave policy state that employees will be terminated if they exceed the permissible number of sick days? It should not. Both the Americans with Disabilities Act ("ADA") and FMLA may require employers to give an employee additional unpaid time off to recover from a disability or serious health condition.
• If your vacation or PTO policy includes a "use it or lose it" policy, have you confirmed that the states in which you operate do not prohibit this type of policy?
12. Benefits. Does your handbook outline the details of all the various benefits available, so that you will frequently have to update this policy?
13. Social Media. Does your social networking policy:
• Require employees to obtain permission before using company images or logos?
• Prohibit online disparagement of the company or co-workers and supervisors?
The National Labor Relations Board has taken the position that such provisions are illegal
14. Break Time for Nursing Mothers. Does your handbook allow for reasonable break time for nursing mothers?
15. Firearms. If you have a weapons or workplace violence policy, have you confirmed that it complies with applicable state laws, some of which allow employees to bring firearms to work in motor vehicles?
16. Dress Code/Appearance. Does your dress code policy allow for exceptions to the policy for religious accommodations, such as wearing certain jewelry or headgear?
17. Acknowledgement Form. Does the acknowledgment form contain a statement that the employee agrees to arbitrate employment-related claims, without a clear explanation elsewhere in the handbook?
If this list raises questions or concerns, it is time for a review and revision, guided by sound advice from counsel.
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