It’s that time of year to revisit your company’s employee handbooks and policies to ensure they are timely, compliant and do not attract scrutiny from the National Labor Relations Board (NLRB), Equal Employment Opportunity Commission (EEOC) or any other agency with an aggressive, activist agenda. Here are 10 must-review handbook provisions:
1. Disclaimers and At-Will Employment. While at-will disclaimer language in a handbook may seem innocuous upon first perusal, employers are best advised to read their disclaimers through the lens of the NLRB to see if the language could be construed as stifling employees’ Section 7 rights to engage in protected concerted activity. Handbook disclaimers and acknowledgement forms that state at-will employment may not be amended, modified or altered in any way should be revised to clarify that at-will status can be modified by an executed written agreement signed by the company’s president or other designated officer.
2. Sick Time. With the increasing trend for local governments to enact legislation mandating paid sick leave (e.g., Portland, San Francisco, Seattle, Washington D.C.), employers with employees in multiple locations should amend sick leave policies to state that the policies are subject to applicable state and local laws. At the same time, in-house counsel should ensure that human resources personnel as well as managers and supervisors in affected locals are thoroughly trained on the nuances of each applicable paid sick leave law.
3. Maximum Leave Policies. Given the EEOC’s zeal for challenging employers’ maximum leave policies (e.g., those stating that employees will be terminated after six months on leave), employers would be wise to eliminate such policies or to revise them to add language inviting employees on leave to request a reasonable accommodation under the Americans with Disabilities Act or other applicable laws. Moreover, employers who maintain maximum leave policies should send letters to employees nearing the end of their allowable leave to invite them to submit a request for an accommodation.
4. Disability Accommodation Policies. Although a handbook may include a provision advising employees that the employer will endeavor to make reasonable accommodations for disabled employees, such provisions sometimes fail to provide employees with a specific person or department to contact to initiate the process. Without specific contact information, employees are left to bring accommodation requests to their managers or supervisors, who often are not adequately trained to properly handle these issues and could make a costly legal misstep.
5. Religious Accommodation Policies. While most handbooks tend to inform employees of the process to request a reasonable accommodation for a disability, many fail to provide employees with information about their right to request an accommodation for a religious belief or practice. Employers should ensure their policies direct employees to contact a specific person or department, such as human resources, to initiate the religious accommodation process.
6. Nonfraternization Policies. Employers with such policies should make sure they clearly definite the term “fraternize” to avoid any NLRB challenges. While the word “fraternize” is commonly used in employee handbooks to refer to dating, the NLRB may interpret the term as potentially misleading employees to believe they are prevented from discussing terms and conditions of employment. To avoid a legal landmine, employers with such policies should clearly define “fraternize” to mean dating or otherwise engaging in romantic relationships. Alternatively, employers might opt to eliminate the term and instead call the policy a “policy against dating.”
7. Confidentiality Regarding Salaries. Policies prohibiting employees from discussing others’ salary information should be eliminated. The NLRB would view them as interfering with employees’ rights to engage in protected concerted activity. If enforced, such policies violate certain equal pay laws, such as the Illinois Equal Pay Act.
8. Social Media. In light of the flurry of NLRB challenges to social media policies, employers should regularly re-examine their policies to ensure the language could not be construed to infringe upon employees’ rights to engage in protected concerted activity. Such policies should provide specific examples of prohibited conduct that are outside of Section 7’s protection.
9. Payroll Deductions. Employers should include a safe harbor provision under the Fair Labor Standards Act in the event of an improper deduction to an exempt employee’s salary. With an effective safe harbor provision in a handbook, the employer is required to correct the pay of the employee, but the employee and all other employees in the same class will not lose their exempt status for that pay period so long as the violation is not deemed willful.
10. Domestic Violence Victim Leave. As a growing number of states are enacting leave laws for victims of domestic violence, employers with workers in those states should include a provision in their employee handbook providing notice to employees of the potential for such leave and for other reasonable accommodations, pursuant to the applicable laws.