Employee Handbook Check-Up: Mid-Year Update, Drafting Tips, … · 2015. 7. 10. · Mid-Year Update, Drafting Tips, and Enforcement Alert Presented by: Thomas A. Cox, Jr. Fisher &

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Employee Handbook Check-Up: Mid-Year Update, Drafting Tips,

and Enforcement Alert

Tuesday, July 14, 2015 1:30 p.m. to 3:00 p.m. Eastern

12:30 p.m. to 2:00 p.m. Central 11:30 a.m. to 1:00 p.m. Mountain 10:30 a.m. to 12:00 p.m. Pacific

Presented by:

Thomas A. Cox, Jr. Fisher & Phillips LLP

This program has been approved for 1.5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI website at www.hrci.org.

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Employee Handbook Check-Up: Mid-Year Update, Drafting Tips, and

Enforcement Alert

Presented by:

Thomas A. Cox, Jr.Fisher & Phillips LLP

July 14, 2015

www.laborlawyers.com ● Phone (404) 231-1400

Should I Have A Handbook?

• “It depends”– Do you want your employees to know your

rules and policies?• Termination

• Discipline

– Do you want the EEOC to see that you have aharassment/discrimination/retaliation policy?

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Should I Have A Handbook?

• Do you want to make your supervisors and HR personnel happy?– Training

– Reference

• Do you want to make your employment lawyer’s job easier?– (and save some money too?)


Introduction

• Why are employee handbooks important?

– Economic (increase in decisions thatadversely affect employees);

– Cultural (set policies and uniform sets ofguidelines);

– Technological (increased workplace use ofSocial Media & Internet)

– Legal (policies are a proactive and defensivetool).

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Introduction

• Employers that invest proper time and resourcesmaintaining up-to-date employee handbooks andeducating their workforce see decreased litigationand higher employee retention rates.

• Court cases, statutes and regulations explicitlyreference employer policies as a determiningfactor in liability.


Handbook Objectives

Employee Based:

• Answer basic questions• Describe benefits• Identify expectations• Outline acceptable

behavior

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Handbook Objectives

Employer Based:

• Promote the Company• Comply with the law• Protect against litigation• Improve unemployment

experience rating


The Most Common Mistakes

• Not tailoring to your business

• Giving employees “rights”• Trying to solve every

problem• Not following through• Forgetting to update• Making it a procedure

manual for management

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Handbook Essentials

• At-will• EEO• No Harassment• Reasonable

Accommodations• Drug and Alcohol• Open Door• Inspection of Work Area• Basic Work Rules

• FMLA• Work Schedule

– Absenteeism/Tardiness– Overtime– Timekeeping

• Electronic Communications• Protecting Information and

Property


Handbook Options

• Introductory Period• Benefits• Basic Work Rules• Personal Business• The Company’s Image

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Don’t Bother

• Anything that happens pre-employment

• Issues that rarely arise

• Issues that aren’t to your benefit– Access to Personnel Files– Exempt Status


Conspicuous Disclaimer

• Law provides that a disclaimer is conspicuous if it is

– Underlined

– In capital letters

– On the first page of the document

– Signed by the employee

– Caution: Courts will still look to see if there is a promise contained in the language of the handbook

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Today’s Employee Handbook

• Same Sex Marriage (and the FMLA)

• Drugs and Alcohol• Protected Classes• EEOC Guidance• NLRB Restrictions• Affordable Care Act• State Laws


Same Sex Marriage

Obergefell v. Hodges held that the Fourteenth Amendment of the U.S. Constitution requires:

• All states to permit marriages between same-sex couples.

• All states to recognize marriages performed in other states, including those between same-sex couples.

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Same Sex Marriage

• The Obergefell decision held that state constitutionalamendments and statutes barring same-sex marriagesare now unconstitutional

• Effectively strikes down bans against same-sexmarriage in states where such laws remain.


Same Sex Marriage

• Pay particular attention to leave policies and non-discrimination provisions

• Past HR practices regarding proof of marriage shouldalso be reviewed

• Past practices regarding domestic partners should also be reviewed

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Drugs and Alcohol

• Recreational marijuana is legal in 4 states, but it’s still illegal under federal law

• Can we still drug test?• PUT IT IN THE

HANDBOOK!


Drugs and Alcohol

• Medical marijuana is legal in 26 states, but is it a protected category in your state?

• Can we still drug test?• Is there a duty to

accommodate?• PUT IT IN THE

HANDBOOK!

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Drugs and Alcohol

• Prescription meds are a bigger problem than illegal drugs

• Safety sensitive positions• Is there a duty to

accommodate?• Can we still drug test?• PUT IT IN THE

HANDBOOK!!!!!


Pregnancy Discrimination

• EEOC issued new guidelines in July 2014:– Expanded definition of pregnancy– Recommended best practices, including training, revision of

leave policies, and reasonable accommodations

• Impact on employee handbooks:− Pregnancy as a protected class− Specific reasonable accommodation policies may be

required

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Pregnancy Discrimination

• Pregnancy Discrimination Act of 1978: employers cannotdiscriminate on the basis of pregnancy, childbirth, or relatedmedical conditions

• PDA requires employers to treat pregnant applicants andemployees equal to non-pregnant applicants and employees,NOT better

• Applies to hiring, promotion, leave, benefits, firing, and otherterms and conditions of employment


NLRB Enforcement

• NLRB has looked closely at employee handbooks

• Applies in union and non-union companies

• Unlawful policies discourage union participation

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NLRB Enforcement

Be courteous, polite and friendly

Lawful Unlawful


NLRB Enforcement

No one should be disrespectful or use profanity or any otherlanguage which injures the image or reputation of the Company

Lawful Unlawful

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NLRB Enforcement

Off-duty employees are prohibited from entering the workplace except to conduct employer-related business

Lawful Unlawful

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com


NLRB Enforcement

Employees who disclose their participation in this internal investigation will be subject to immediate termination

Lawful Unlawful

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NLRB Enforcement

The at-will relationship cannot be amended, modified or altered in any way

Lawful Unlawful


NLRB Enforcement

No representative of the company has any authority to enter into an agreement that is contrary to the ‘employment

at will’ relationship.

Lawful Unlawful

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NLRB Enforcement

• Purple Communications decision in December 2014

• Employers cannot completely limit employee use of company e-mail systems on non-working time

• Employees must be able to use Company e-mail for protected concerted activities on non-working time


NLRB Enforcement

• Policies prohibiting solicitation using e-mail unlawful

• Total ban on non-business use of e-mail unlawful

• Restrictions?• Disclaimer?

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Social Media Policy

• Increasing number of states enacting lawsprohibiting employers from asking for personal e-mail, social media account passwords

• Could also mean revisions to electroniccommunications/e-mail policies


Six Tips for a Social Media Policy

• Be Specific:

– Target specific behaviors that violate the law or company policies

– Flawed policy: Company A’s policy barring statements that harmthe Company’s reputation – employees could read it as a ban onprotesting the treatment of employees

– Acceptable policy: Company B’s policy limited its prohibition tocomments that are malicious or obscene

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• Give Examples:

– Broad categories of prohibited or required conduct will draw scrutiny

– Give examples not related to terms and conditions of employment but related to business products, trade secrets, guest information, etc.



• Do Your Homework:

– Look at various policies that have been upheld in its entirety

– Identify the “goals” of your need for a social media policy

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• Consider a Disclaimer:

– Will a “savings clause” fix an otherwise unlawful policy?

– Board decisions suggest a clause could make a difference

– Recent Division of Advice Memo (10/19/12) validates a “savings clause”



• Stay Current:

– Odds are, unless you’ve drafted a policy in the last few months, it’s not current

– Board’s first few cases will not be the last

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Implementation

• Provide written notice announcing re-issuance of the handbook

• Conduct meetings with employees to cover the relevant changes

– Keep track of attendance at meetings (ie, sign-in sheets, etc.)

• Re-issue employee handbook

− Provide employees with a copy of the revised handbook− Have employees sign Acknowledgment Form− Photocopy or retain copies of signed documents


Implementation

• Even the best handbook fails if you can’t “prove” your employees received it

• Obtain a signed acknowledgment of receipt for the handbook and all revisions

• Keep the signed acknowledgment in personnel file for at least one year aftertermination

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Future Updates

• When the law changes

• When your policies change

• Annually review your handbook


Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Gulfport · Houston Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New Jersey · New Orleans

Orlando · Philadelphia · Phoenix · Portland · San Antonio· San Diego · San Francisco · Seattle · Tampa · Washington, DC

www.laborlawyers.com

Questions?

Presented by:Thomas A. Cox, Jr.

Phone: (404) 240-4229 Email: [email protected]

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Disclaimers

*This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

Thomas Cox, based in Fisher & Phillips LLP’s Atlanta office, is an experienced trial attorney and counselor who concentrates his practice

in the areas of labor and employment litigation and counseling. Cox is rated “AV,” the highest rating attainable, by the Martindale-Hubbell Law Directory. He has also been named to the Georgia Super Lawyer list and has been featured in Who’s Who In Black Atlanta. In his current practice, he defends private sector clients in all types of employment related litigation, arbitration and mediation including claims of discrimination and harassment under Title VII, as well as the defense of state law claims. He also has extensive experience in representing federal contractors in audits initiated by the OFCCP. While in private practice, Cox has been a partner in a small diverse law firm, a regional law firm and two AmLaw 200 large law firms before joining Fisher & Phillips. In two of his previous firms he served as the Atlanta Vice-Chair and Team Lead of the Labor & Employment practice group. He has also served in other firm leadership capacities. He has extensive contacts within the local Atlanta business and civic community. His trial practice has allowed him to assist clients in matters in courts across the United States.

Thomas Cox

Documents

Employee Handbook Check-Up: Mid-Year Update, Drafting Tips, … · 2015. 7. 10. · Mid-Year Update, Drafting Tips, and Enforcement Alert Presented by: Thomas A. Cox, Jr. Fisher &