How long has it been since your organization updated its employee handbook? It’s time to brush off any layers of dust that have accumulated over the years and make it a priority to conduct a review prior to the year’s end. In this article, I reveal five evolving areas to focus on now so you can start the quickly approaching new year off on the right foot.
The #MeToo movement has shone a spotlight on Equal Employment Opportunity, sexual harassment, gender discrimination, and retaliation in the workplace. Employers should carefully review their policies on these subjects, including complaint and investigation procedures. Harassment policies should include prohibitions based on any legally protected category. A clear complaint procedure should be included for these policies that allows for multiple reporting avenues, available during all shifts. Appropriate training and consistent disciplinary enforcement are key.
2. The NLRB – New Guidance on Handbook Rules
In the recent past, much ado has been made regarding the National Labor Relations Board (NLRB) flagrantly exercising authority over employers’ social media and other handbook policies. Yet, things appear to be shifting in a more employer-friendly direction. On June 6, 2018, following up on The Boeing Company decision, 365 NLRB No. 154 (Dec. 14, 2017), the Board’s General Counsel (GC) issued an advice memorandum on the new standard for analyzing whether a work rule violates employees’ rights.
The GC’s memorandum analyzes common employer rules and provides guidance as to whether or not a complaint should be issued. There are three Boeing categories: generally lawful, case-by-case evaluation required, and unlawful. The memorandum emphasizes that the proper focus is now on whether a rule in question would actually be interpreted to cover protected concerted activity under Section 7 of the National Labor Relations Act. Specifically, “ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.” Thus, the time is ripe for employers to reconsider their policies regarding civility, photography/recording, insubordination, disruptive behavior, confidentiality, disparagement, and conflicts of interest, among others.
3. Data Privacy
On March 28, 2018, Alabama followed the lead of 49 other states, including Florida, in requiring protection of sensitive consumer information and notice of data breaches, as well as imposing consequences for failing to comply. Due to the prevalence of federal and state privacy laws impacting the workplace, along with the implementation of the European Union’s new privacy law, the General Data Protection Regulation (GDPR), employers should scrutinize their existing privacy rules to ensure compliance.
4. Superfluous Language
Most employers have learned that including an at-will policy in the handbook reinforces the principle that employment may be terminated at any time for any lawful reason. Likewise, at-will policies should clarify that the handbook is not a contract, and employers may revise policies without prior notice. Equally, employers should beware potential promises made by superfluous language. Unnecessary purpose statements, rigid progressive discipline steps, and unrealistic commitments to provide training or a mutually enjoyable work environment should be avoided. To prevent estoppel arguments, avoid labeling personal or extended leave as falling under Family and Medical Leave Act (FMLA) when it does not.
5. Employee Acknowledgments and Training
Employee acknowledgements demonstrate evidence that employees have received the handbook and should be obtained each time the handbook is updated. The acknowledgement can be utilized to reiterate the at-will policy and to shift responsibility to employees to raise any complaints or questions about the handbook or your policies. Also note that violations of any policy, whether or not identified in the handbook, can lead to discipline. Furthermore, employers should consider providing training to managers and employees when handbooks are significantly updated.
Dedicating the time and resources to reviewing policies on an annual basis is well worth the investment. Handbooks that require a complete overhaul may be best tackled by consulting legal counsel.
Dee Anna Hays is a shareholder in the Tampa office of Ogletree Deakins. She is board certified in labor and employment law by the Florida Bar.