Is your employee handbook up to date? Essential components and sample policies for 2015

Is Your Employee Handbook Up to Date?: Essential Components

February 18, 2015

Thomas Benjamin “Ben” HuggettLittler Mendelson, P.C.

1601 Cherry Street, Suite 1400 Philadelphia, PA 19102

276.402.3035tbhuggett@littler.com

Overview Why Do I Need A Handbook?

Guide for Employees

Guide for Managers

Guide for You!

Overview Why Do I Need A Handbook?

Confirms at-will relationship

Communicates policy

Helps ensure uniform treatment of employees

Overview Why Do I Need A Handbook?

Promotes fairness in workplace

Useful in litigation

Overview Why Do I Need A Handbook?

Absence of a handbook will not prevent litigation

Companies without handbooks are more vulnerable

What To Do Before You Prepare A Handbook

What To Do Before You Prepare A Handbook

Review existing policies

Ascertain current practices

Determine needs & goals

What To Do Before You Prepare A Handbook

Solicit input from managers

Decide what works

Use opportunity to change

What To Do Before You Prepare A Handbook

Consider applicable laws!

– Anti-discrimination laws

– National Labor Relations Act

– Family and Medical Leave Act

– State and local laws and regulations

Overview of the Handbook

Overview of the Handbook -General Considerations

Be Clear

Be Simple

Be Direct

Avoid “canned” language

Overview of the Handbook -General Considerations

Avoid unnecessary detailExample:

• Not necessary to include job descriptions

Update handbook regularly!

Overview of the Handbook –Welcome Message

Introduction

–Describe purpose of handbook

Overview of the Handbook - Welcome Message

Avoid promises

Consider and do not contradict other handbook language

Consider all possible interpretations

Preserve at-will relationship

Overview of the Handbook - Introductory Language

Anything wrong here?– “Welcome to ABC Co. We

expect our relationship to be long and prosperous.”

– “XYZ is a Company where employees are treated fairly and build rewarding careers.”

– “At A1 Inc., we consider our associates part of the family. You’ll always have a job here.”

Overview of the Handbook - At-Will Statement

What does “employment at-will” mean?

What makes an employee “at-will”?

What is an “at-will” statement?

Do I need one?

Overview of the Handbook - At-Will Statement

Avoid “contract” language

Add contract disclaimer

– Clear and conspicuous

Do not undermine other provisions

No promises - Poor language lets others decide

Overview of the Handbook - Contract Disclaimer

State that all changes must be written and signed by certain personnel

– e.g., Executive Director, Head of Company, Principal

Reserve right to add, delete, suspend and/or modify policies

Overview of the Handbook - Contract Disclaimer

Suggestion:

– Repeat at-will language in policies that may be construed as limiting at-will relationship

– Obtain employee acknowledgement of disclaimer

– Consult legal counsel

Avoid Specific Language

Avoid words such as “must,” “shall,” and “will.”

Use less mandatory language such as: “should,” “consider,” and “may.”

Other words to avoid are “fair,” “just,” “respectful,” “even-handed,” and “equal.”

The key is to leave room for flexibility, discretion, change, and unforeseen circumstances.

Overview of the Handbook -Acknowledgment of Receipt

Key features:– Affirms at-will employment

– Recognizes Company’s right to add, delete, or modify policies

– Commits to adhere to policies

Get acknowledgement after each revision!

The National Labor Relations Board (NLRB) And Your Handbook

Does The NLRB Apply?

But we are non-union -- Can I just skip this part of the presentation and check my emails?

NO! All employers

must consider the NLRB.

What is the NLRB?

National Labor Relations Board

Enforces the National Labor Relations Act

It has aggressively issued opinions addressing employment policies

Concerted Activities

The NLRB is concerned with Employer policies that interfere with, restrain or coerce employees in the exercise of their right to engage in concerted activities.

Concerted Activity

In DirectTV, the NLRB attacked common handbook rules it found to be overly broad or ambiguous because they would potentially dissuade employees from discussing their wages, hours and terms or conditions of employment with people outside the company.

The rules involved: (1) employee statements to the media; (2) instructions regarding contacting or commenting to the media without pre-authorization from the public relations department; and (3) confidentiality rules advising employees to not discuss details about their job or company business with anyone outside the company

Focus Areas

The NLRB’s assault on handbooks continues– At-Will Employment– Complaint Procedures– Confidentiality– Non-Disparagement/False Statements/Conflict of

Interest– Non-Solicitation– Social Media/Media Relations– Usage of Company Resources– Uniform/Dress Code/Logos– Discipline/Dispute Resolution– Email Organizing (Purple Communications)– Leaving Work Areas

14 Key Policies to Review

1. Use of Electronic Communications/equipment;

2. Prohibitions against public statements by employees;

3. Prohibitions on false statements or disparagement of the employer;

4. Policies prohibiting harassment, confrontational, or disruptive conduct;

5. Confidentiality rules;6. Rules requiring participation in internal

investigations;7. Solicitation and distribution policies;

14 Key Policies to Review

8. Rules restricting the use of employer logos;9. Uniform policies and restrictions on insignia;10.Rules prohibiting leaving work areas without

authorization;11.Rules prohibiting loitering in or entering work

areas while off duty;12.Fraternization policies;13.Social media policies; and14.At-will disclaimers.

EEO and Harassment Policies In Your Handbook

Overview of the Handbook -Equal Employment Opportunity

Useful when defending against discrimination claims

– Government agencies expect it

– Courts expect it

– Juries expect it

– May reduce liability

Overview of the Handbook -Equal Employment Opportunity

Confirm Company “does not discriminate against applicants or employees because of their race, color, religion, sex, pregnancy, age, disability, national origin, or any other basis protected by applicable federal, state, or local law”

Include internal complaint procedure

Include process for resolving complaints

Complaint Procedure

Provides prompt, thorough, and objective investigation of any claim of unlawful or prohibited discrimination; appropriate disciplinary action if warranted; and appropriate remedies for any victim of discrimination.

If you believe discrimination has occurred, you should provide a written or verbal complaint to your supervisor or HR as soon as possible.

Retaliation is prohibited.

Overview of the Handbook -Anti-Harassment

It’s Not Just About Sex!– Prohibit all forms

of unlawful harassment

Overview of the Handbook -Anti-Harassment

Prohibit harassment based on age, race, religion, national origin, disability, and any other protected category

Include internal complaint procedure

Define prohibited conduct

Prohibited Harassment

ABC PCS prohibits sexual harassment and harassment based on race, color, national origin, ancestry, religion, creed, physical or mental disability, age, or any other basis protected by applicable federal, state or local law. All such harassment is unlawful and will not be tolerated.

Prohibited Harassment

Sexual harassment defined as unwanted sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature when:1. Submission to the conduct is made a condition of

employment;

2. Submission to or rejection of the conduct is used as the basis for employment decisions affecting the individual;

3. The conduct has the purpose or effect of unreasonably interfering with the employee’s work performance or creating an intimidating, hostile, or offensive working environment.

Other Types of Prohibited Harassment, Such as . . .

Verbal conduct such as threats, epithets, derogatory comments, or slurs

Visual conduct such as derogatory posters, photographs, cartoons, drawings or gestures

Physical conduct such as assault, unwanted touching, or blocking normal movement

Retaliation for reporting harassment or threatening to report harassment

Overview of the Handbook -Anti-Retaliation

What’s the fastest growing employment

claim?

Retaliation!

Overview of the Handbook -Anti-Retaliation

Prohibit retaliation – by anyone – against employees who complain of unlawful harassment or discrimination

Include internal complaint procedure

Overview of the Handbook -Harassment/Retaliation Policies

Prohibit retaliation against employees who participate in investigations of harassment or discrimination

Anti-Retaliation Policy

Example of Opposition: threatening to file a discrimination complaint with the EEOC or protesting alleged discrimination to a supervisor, co-worker, or other Company official.

Examples of Participation: filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, hearing, or litigation under federal or state employment discrimination statutes.

General Provisions

General Provisions

Application policies

– Application data must be truthful

• Include in handbook?

General Provisions

Workplace Safety

– Affirm commitment to safety

– Encourage employees to report unsafe conditions

– Require employees to report work-related injuries

General Provisions

Workplace ViolenceWhat is it?

– Acts or threats of violence or physical intimidation expressed toward individuals in the workplace will not be tolerated

To whom should it apply?– Employees?

– Contractors?

– Visitors?

– Anyone else?

Policy Against Workplace Violence

Acts or threats of physical violence, including intimidation, harassment, and/or the conduct of business off Company property, will not be tolerated

Applies to all persons involved in Company operations, including Company personnel, contract workers, temporary employees, and anyone else on Company property

Violation of this policy will lead to disciplinary and/or legal action as appropriate

General Provisions

Emergency Evacuations and

ClosingsWho should be notified of

emergencies?

What are the emergency procedures?

– Where can they be found?

General Provisions

Employment Eligibility & Verification

– Compliance with Immigration Reform and Control Act (IRCA)

General Provisions

Nepotism/Fraternization

– Will Nepotism be permitted?

– Will Fraternization be permitted?

– Limits?

•Direct reporting relationships?

•Same department?

General Provisions

Open-Door Policy/Complaint

Procedure

– Encourages ideas and suggestions

– Promotes open communication

– Fosters team environment

– Improves morale

Wages, Hours, and Time-Off Provisions

Wages, Hours, and Time-Off

Wages– Employee Classifications

• Define - for example:

– Full-time

– Part-time

– Temporary

– Exempt

• Ensure conformity with benefits plans!

Wages, Hours, and Time-Off

Wages– Workweek (e.g., Mon. to Sun.)

– Meal & Rest Periods

• Breaks

• Length?

• Paid?

Wages, Hours, and Time-Off

Wages

– Recording hours

• How? Manual recording?

– State payday in writing

– Frequency of pay

Wages, Hours, and Time-Off

Wages– Direct deposit

•Must have advance, written consent

– Safe harbor (FLSA)

•Written complaint procedure

•Helps maintain exempt status

Wages, Hours, and Time Off

Hours– Normal

Company day

• Define

– Overtime

• State when it is ok to work OT

• Prohibit unauthorized OT

Wages, Hours, and Time-Off

Time Off– Notify employees in

writing of policies on:

• Hours

• Holidays

• Sick Leave

• Personal Leave

• Vacation

Wages, Hours, and Time-Off

Time Off– Vacation (cont.)

• Accrual rate

• “Use It or Lose It” or Cap?

• Accrued & Unused Paid on Termination?

– Bereavement

• Required by law?

• How many days?

• Which relatives?

Wages, Hours, and Time-Off

Time Off– Jury Service

• Must it be fully paid?

– Criminal Court Appearance

• Victim or Victim’s Representative or Next of Kin

• Witnesses

• Others?

Wages, Hours, and Time Off

Time Off – Philadelphia allows

victims of domestic violence to take time off

Wages, Hours, and Time Off

Time Off – Family and Medical Leave

• Governed by federal and state law

• Consult legal counsel

– Short-Term Disability

– Voting Time

– Military

– Other?

• Adoptive Parents

Benefits Provisions

Benefits Provisions

Why refer to benefits?

What types of benefits?

– Medical

– Dental

– Vision

– Flexible Spending Accounts

– Workers’ Compensation (mandatory)

Benefits Provisions

Keep it simple

Do not overstate

– scope, eligibility, cost

Conform to plan documents (e.g., SPD)

Reserve right to amend

Confirm plan documents control

Benefits Provisions

Employee Assistance Program (EAP)

401(k)

Life Insurance

Education Assistance

Employee Referral

Bonuses

COBRA

Performance Provisions

Performance Provisions

Personnel Files

– Access?

– Required by law?

Performance Reviews

– When?

– How?

Wage Adjustments

Standards of Conduct

Standards of Conduct

Code of Conduct

– What is not permissible?

• Use illustrative list

• Lawful, off-duty behavior?

– Confirm at-will status

– Progressive Discipline?

• In all cases?

– Consult legal counsel

Standards of Conduct

Attendance– State expectations

• Be affirmative

• Example: “If you are unable to report for work on any scheduled workday, you must notify your supervisor at least one-half hour in advance of your scheduled start time.”

– Be general

– Be flexible

Standards of Conduct

Appearance/DressNecessary?

If so, draft carefully– May violate law if discriminatory

impact on employees because of their sex, race, religion, etc.

– Consult legal counsel!

Ensure uniform enforcement

Standards of Conduct

Drugs & Alcohol

What is prohibited?

Right to search?

– Where?

Right to test?

– Under what circumstances?

Standards of Conduct

No Smoking

Prohibited on premises?

Off-duty?

Standards of Conduct

Solicitation RestrictionsBy whom?

– Employees? Non-employees?

Legal Issues

– Limit to working time

• When employee is being paid to perform services

• Does not include meal or rest periods

– Consult legal counsel

Standards of Conduct

Confidential Information

Define

Prohibit unauthorized use/disclosure

Separate agreement?

Consult legal counsel

Standards of Conduct

Use of Company Property

What property?– Work and storage areas

– Computer and fax systems

– Cell phones, pagers, and PDAs

– Digital cameras

Standards of Conduct -Use of Company Property

Policy applies to all technical resources that are owned or leased by the Company, used or accessed from Company premises, or are used for Company’s business.

Acceptable uses: technical resources are provided for use in the pursuit of Company mission and are to be reviewed, monitored, and used only in that pursuit, except as otherwise provided.

Standards of Conduct -Use of Company Property

Unacceptable uses: technical resources should not be used for personal gain or the advancement of individual views.

Sending, saving, or viewing material that may be considered “reasonably offensive” is prohibited.

Standards of Conduct -Use of Company Property

Access to Information: The computer, voicemail, telephone systems, and data stored on them are and remain at all times the property of the Company.

All information created, sent, retrieved, or stored on the Company’s property or resources shall at all times constitute property of the Company, and should not be considered private or confidential.

All passwords must be made available to the Company upon request.

Termination Provisions

Termination Provisions

Voluntary/Involuntary

Confirm at-will status

Voluntary:

– Request notice period

Termination Provisions

Exit Interview

Reference in handbook puts employee on notice

Generally provides opportunity to improve workplace

Termination Provisions

Final Paycheck

Must pay final wages no later than next business day after date on which discharge occurred.

Termination Provisions

Return of Company Property

– Identify scope of property to be returned

– State to whom it must be returned

– State when it must be returned

Termination Provisions

Job References

Who may provide them?– HR only?

What may be said?– Dates of employment

– Positions held?

– Salary confirmation?

Miscellaneous Provisions

Miscellaneous Provisions

Expense Reimbursement

Transportation/lodging limitations?

Deadline for submission of expenses?

Required receipts?

Advance authorization?

Miscellaneous Provisions

Privacy

Confirm no reasonable expectation of privacy

Limited use of employee data

Questions and Answers

Ben Huggetttbhuggett@littler.com267.402.3035