Employment and labor laws continue to change rapidly, and employers need to keep pace. Perhaps the best way for employers to do so is by updating employee handbooks and/or internal policies and procedures that anticipate new pressures to the workplace. With that in mind, the following are thirteen reasons why your company may need to update its employee handbook in 2013.
1. You Have an Obsolete Harassment and Discrimination Policy. One of the central issues in discrimination and harassment litigation is what policies, if any, the employer had in place to receive and process employee complaints about workplace misconduct. Any policy should, at the very least, identify an individual to receive complaints, and state how complaints can be made. Adopting a lawful policy and following its terms may act as a defense to any workplace claims that are raised, so it is vital to have an employee handbook with a proper complaint procedure in place.
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2. You Have Not Enacted a Progressive Disciplinary Policy. A progressive disciplinary policy should be a central component of any employee handbook. The policy should require and result in even application of the company’s disciplinary policies, which, in practice, should thwart claims by unhappy employees who are subject to discipline. Just as importantly, following a progressive disciplinary policy should protect your company from claims of discrimination by those who could point to uneven application of disciplinary rules to fellow rules violators.
3. You Require Confidentiality in Every Workplace Investigation. The National Labor Relations Board is a government agency that, over the past few years, has been aggressively enforcing the rights of employees to engage in collective activities. According to the NLRB, blanket rules requiring confidentiality for workplace investigations may violate federal law by prohibiting employees from collectively engaging about the terms and conditions of employment. While requiring confidentiality may be permissible in certain investigations, a rule requiring confidentiality in all investigations is likely to be considered an unfair labor practice.
4. You Have an Overly Restrictive Social Media Policy. Social media use continues to explode, and the NLRB has taken notice. In several recent rulings, the NLRB has challenged several corporate social media policies, including one that required employees to use appropriate business decorum, and one that prohibited the posting of electronic messages that damage the employer or any person’s reputation. According to the NLRB, these policies are drafted broadly enough that they could chill employees’ rights to collectively communicate about the terms and conditions of employment.
5. You Don’t Have an FLSA Safe Harbor Policy for Improper Deductions. The FLSA permits employers to make payroll deductions for certain employees for such events as FMLA leaves, for certain absences, and to offset jury pay. But employers can land in hot water if they make improper deductions and do not have a policy for employees to report improper payroll deductions. Such a policy is known as a “Safe Harbor” policy and it can save employers an enormous amount of expense and hassle if properly implemented and followed, especially since the damages available for overtime violations can be severe.
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6. Your Company Is Subjected to FMLA Requirements by “Equitable Estoppel.” Most managers and HR professionals know the basic rules of the FMLA – the Act applies to those employers with 50 or more employees in a 75-mile radius. But recent court rulings have applied a principle called “equitable estoppel” to apply the FMLA to some employers who do not have 50 employees. Equitable estoppel is a doctrine where an employee can show it relied on its employer’s mistaken statement that FMLA leave was available, and the employee then suffered damages as a result. In such a situation, the employer will be legally “estopped” from saying that FMLA coverage was not available. If your company is covered by the FMLA, make sure you properly state the terms under which leave will be granted.
7. Your At-will Employment Disclaimer Violates the Law. Employers need to make sure that their employee handbooks contain a disclaimer clarifying that employment is strictly at-will and can be terminated at any time, for any reason, or for no reason at all. Problem is, the NLRB has taken a close look at employment disclaimers in employee handbooks, and taken issue with an at-will employment disclaimer that stated “that the at-will employment relationship cannot be amended, modified, or altered in any way.” By stating that the employment relationship could not be changed in any way, the NLRB determined that employees were essentially informed that they could not collectively bargain or seek unionization to change the terms and conditions of their employment.
8. Your Company Considers Genetic Information When Making Decisions. It has only been a few years since the Genetic Information Nondiscrimination Act was enacted, and it prevents discrimination against employees on the basis of genetic information. Make sure your handbook has this important law covered in the antidiscrimination and anti-harassment policies.
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9. You Improperly State How Unapproved Overtime will be Handled. Many employers believe the best way to avoid overtime claims is by not paying overtime work that wasn’t approved in advance. But this policy is misguided: not paying for overtime is a violation of the FLSA. Instead of having such a policy, employers should create a disciplinary policy for addressing unapproved overtime worked by employees.
10. You do not Respect Employee’s Workplace Privacy. Email, cell phones, the Internet, and social media are all tools that employers can harness to maximize efficiency and improve operations. But technology can be abused, and employers seeking to monitor use of these media can unknowingly violate state and federal privacy and wiretapping laws by monitoring certain electronic communications. Employers and employees alike need to have clear policies in place to minimize potential issues with legal privacy rights.
11. You Don’t Have a Drug and Alcohol Abuse Policy. Substance abuse is not always just an off-hours problem, with statistics showing a high number of individuals abusing chemicals during work hours. Employers must be mindful of the risks work-related drug and alcohol abuse post to employees, clients, and the business, and the best way to do that is to implement a drug abuse prevention policy for the workplace.
12. You Don’t Have a Whistleblower Policy. Whether it is by paying taxes or maintaining a tax-exempt status, or having to deal with a host of governmental regulations, your company, on some level, engages with the government. And since your company operates through its employees, fraudulent or improper employee conduct aimed at the government is always a possibility. Because of that, your company should implement a whistleblower policy to alleviate the potential of fraud.
13. You Don’t Have a Workplace Violence Prevention Policy. Employees are the heart and soul of a successful organization, and employers must enact measures to protect their employees and the safety of the workplace. Employers need a policy that does not tolerate violence or threats, and the policy must clearly define appropriate interactions in the workplace and at company events.
Whether you have one employee or one thousand, state and federal employment laws apply to your business. This is true regardless of how friendly and informal your company culture may be, and, in the event of a conflict or litigation, those laws will trump any cultural standards or understandings your business has adopted. That so, it is vital to have policies in place to deal with inevitable issues that will arise with your workforce, and the best place for such policies and procedures is in your company’s employee handbook. If your company needs an employee handbook, or if you need to update an existing handbook, please call Robert E. Byrne, Jr. at (434) 817-3100.
For more information about MartinWren, P.C. and its Virginia Employment Law practice, please visit our website.
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