As the first quarter of 2016 winds down and the craziness of open enrollment, budget planning and strategy development for a new year grow smaller in the rear view mirror it is time to ask yourself: what shape is my employee handbook/policy manual in? Have I incorporated everything necessary for 2016? Is this critical document up to date?
Let's look at the Top Ten Updates for 2016:
1. Social Media Policy - How specific is your policy in regards to what an employee may or may not disclose online about your organization? Typically we tend to be very broad believing that the more specific we are the less adaptable the policy is to varying situations. And that is a valid point. However, the National labor relations Board has heard a number of cases in recent years pertaining to this issue and come down (mostly) on the side of freedom of speech. The overly broad policies we all strive to develop have been considered in these cases to violate collective bargaining rights even when there has been no effort to form a union. Savvy attorneys are looking at these cases and rulings. If your disciplinary actions move to the termination level these rulings could be used against you in a wrongful termination lawsuit. What to do? Review your language. How broad is it? Are you specifically talking about disclosure of vendor identity, customer identity, confidential business information, things that would damage the organization's ability to conduct business? Tighten up the language. You should still talk about time-loss activities on company time of course. But a broad statement along the lines of "thou shalt not discuss where you work at all on social media" isn't such a good idea and in the hands of an attorney could come back to bite you.
2. Data Privacy - This follows along from item #1, make sure your policy clarifies that employees are not to download apps onto a device that contains employer information and not to click on links in unsolicited emails. There is a LOT of malware out there just itching to access your data. Also, be very clear that employees are not to leave a device used for work in a car (laptops, cell phones, tablets, etc.) and to report any theft of such a device immediately. This may seem like common sense but it isn't. There have been numerous reports int he news over the years of employee laptops being stolen and customer data being hacked.
3. Reasonable Accommodations - Make sure you are fully aware of the reasonable accommodation laws in your state, not just the federal version. Clarify in the handbook what the legal basis for such accommodations is and that the organization intends to comply. Managers must be put on notice that if an employee mentions a condition that might qualify the manager needs to ask if the employee is seeking an accommodation. Used to be the employer could wait until the employee specifically made the ask. Now the dialog must happens even if there is a possibility. Spell out your process for making such a request and remember - if you accommodate one employee for their condition you need to make certain to accommodate others with the same condition. Always keeping in mind that an accommodation means whatever the adjustment might be it allows the employee to fully perform all of the essential functions of their position. They still need to be able to do the job. ALSO if you are accommodating someone with a lifting restriction and you have a pregnant employee with the same or similar lifting restriction due to her pregnancy, you have to offer her the same accommodation. You cannot discriminate based on pregnancy.
4. Retaliation - Always a fun topic. And one that comes up often in unemployment cases (I was fired because I spoke up ...) and EEO claims (The employer retaliation against me by ...). We all know to state that the organization will not tolerate retaliation. But does your policy also state that you will protect witnesses and others who participate in the investigation of a retaliation claim at least so far as is permissible under the law? Be careful not to promise complete confidentiality, instead state that identities will be revealed only on a need-to-know basis. Be sure to discuss with your legal counsel the full meaning of "whistle-blower" protection. It doesn't necessarily mean what employees think it means.
5. Wages & Payroll - There are two areas that ought to be clearly addressed to minimize liability: unauthorized overtime and improper deductions from employee pay. The first issue (unauthorized overtime) is of special concern as we all wait to see what the final rule ends up being for the revised FLSA exemptions. However, unauthorized overtime is where that really great dedicated employee can get the employer in trouble in an FLSA audit without meaning to. They come in early, they stay late, they work over weekends... and they don't record their time. If this employee is eligible for overtime then they must be compensated for this time worked. No way around it. If the Wage & Hour Division shows up to do an FLSA audit they are going to talk to people and it is going to come out that this employee is working all these extra hours and not being compensated. Hello back pay, fines and headaches! Therefore, make it 100% clear in your handbook that employees may not work overtime without advance permission from the manage and that the manager can (and should!) discipline employees after they work unapproved overtime. Also make it clear that nonexempt employees may NOT access job-related emails or conduct other business outside of work hours.
Deductions that are not court-ordered (garnishments) or required by law (taxes, etc) are not uncommon . The handbook should spell out practices that the organization does and does not engage in with regard to pay. Be certain to note that good-faith efforts will be made to correct errors and encourage employees to bring such errors to the employer's attention immediately upon notice.
6. State-Specific Laws - Every employer is responsible for not only keeping up-to-date with the federal regulations but also with the state and local laws pertaining to employment as well. Has your state legislature been busy? Do you know when any changes or new laws go/went into effect? It is easy to miss some of these as they don't garner the headlines the federal laws do.
7. Leave Benefits - Are your leave benefits up to date? Do you address the 30 hour workweek for the purpose of insurance under the Affordable Care Act? Is it clear that FMLA is actually unpaid leave but employees may (or perhaps are required) to utilize paid leave concurrently. Speaking of FMLA have you updated the spousal section to incorporate same-sex couples? Do you have a multi-state organization wherein one or more states now mandate an amount of paid sick leave? Are you a federal contractor with various leave mandates? How are these reflected in your handbook? Remember this is the first section a new employee turns to upon being hired.
8. Attendance - Employers should be very careful how they treat an employee who does not qualify for FMLA or who has exhausted it. It may be that the condition in question falls under the ADA and thus the employee may be eligible for leave under that legislation. You should note that this is a possibility and cross-reference the reasonable accommodation language.
9. Smoking and Marijuana Use - We're all familiar with cigarette smoking bans, no tobacco use policies but times have changed... again. Now we have e-cigarettes and in some states legal use of marijuana. If you do not already address e-cigarettes you should update your handbook to do so and treat them like any other tobacco product. The use of marijuana for medical or recreational purposes can generally be treated the same as any other drug. You can't use alcohol at work or come to work under its influence, marijuana can typically be treated the same way. HOWEVER some states have enacted laws prohibiting organizations from firing an employee who tests positive for marijuana if they hold a valid medical marijuana registration card. And there are court cases that have upheld terminations of employees even with a medical marijuana prescription. Be sure to talk to your legal counsel regarding what the current legislation is in your state.
10. LGBT Rights - Laws are still evolving despite the 2015 Supreme Court ruling that permits and recognizes same-sex marriage. This means a same-sex married couple has the same rights to insurance coverage that a married hetrosexual couple has under your policy. Communities in some areas have extended the anti-discrimination protections to transgender individuals, are you aware what your municipality has done is this regard? Gender identity is now included under Title VII of the Civil Rights Act of 1964. Take a look at your anti-discrimination statement. Compare it not only to the federal classifications but also to your state and local.
It is a good idea to review your handbook on an annual basis, especially these days. Time was you could go three to five years without an update this is no longer the case. When in doubt ask an expert - your legal counsel, a consultant who specializes in human resources and labor law in your state and the best place to start is with your senior human resources professional.
Credit: SHRM - check out their website for more info
