Whether you have one employee or thousands, your company should have an employee handbook containing policies applying to your workforce. Policies establish the general guidelines that serve as the basis for specific procedures and practices, which are best kept separate as they tend to need updating more frequently.
Properly drafted handbooks communicate your expectations for employees as well as their rights and benefits; establish guidelines for consistency in future situations, including those that may not occur very often; give employees and supervisors initial guidance when HR or leadership cannot be reached and can provide legal and safe harbor protections for your company.
Handbooks are legal documents, so you need to be sure yours is compliant, up to date and in line with your workplace practices. You also need to have documentation to show you have told employees and supervisors that they are expected to follow its policies consistently. If you are challenged in court or through a complaint, you will be held accountable for what is (and is not) in your handbook. Not having a handbook can be used to show a lack of consistency in your practices, which will be detrimental to your defense.
Best practice holds that a handbook should be reviewed and updated every year or two or when there are major federal and state regulatory changes. For this latter reason, if you have not updated your handbook in the past six months, now is the time.
National Labor Relations Board (NLRB) Decision: Perhaps the biggest impact of this decision is one that few employers may have paid attention to. While the National Labor Relations Act (NLRA) mostly affects unionized workplaces, some of its provisions also serve to protect non-unionized employees. The most significant may be Section 7, which protects the rights of all employees to protected, concerted activity when aimed at improving the workplace or working conditions for themselves or others. While it does not allow employees to violate company policies on confidentiality, harassment or workplace violence, it does protect certain employee speech such as sharing wage information, complaining on social media about working conditions or loudly expressing frustration about or to management.
Past NLRB decisions established that employment policies must be drafted so that they do not specifically violate or appear to “chill” these rights, impacting wide-ranging policies including Confidentiality; Use of Social Media; Solicitation and Distribution; Use of Computers, Internet, Email and Employment-at-Will. However, the NLRB’s recent decision in Stericycle Inc. expands on this by stating that if a policy could have the “tendency to chill” the protected concerted activity of its employees, it is “presumptively unlawful.” An employer would have to prove that more narrowly drafted language would not be sufficient to protect its “legitimate and substantial business interest.”
Given the chance that employer handbooks will be read with the presumption that they are drafted to chill employee rights under Section 7, all policies should be reviewed and updated to ensure that their language is properly drafted so no such presumption can be made.
Other Federal Changes: There have been other federal laws, regulations and legal opinions issued on the federal level that impact all companies and need to be addressed in your handbook.
The new PUMP Act provides more protections for nursing employees to pump breastmilk at work by increasing the number of employees who are protected as well as the requirements for offering breaks and creating a private space for these employees to use.
Once the guidance for the Pregnant Workers Fairness Act (PWFA) is finalized, it is expected to make significant changes to how companies handle workers who are pregnant, just gave birth or are having fertility issues. This will require updating policies and procedures in most companies.
The EEOC updated the language on its “Know Your Rights” poster, which should be reflected in your Equal Employment Opportunity and discrimination policies. This includes adding as protected groups sexual orientation, gender identity and employees that file or participate in a workplace investigation.
The EEOC also recently proposed new Enforcement Guidance on Harassment in the Workplace which, among many other things, reinforces the importance of having a clear, strong non-harassment and sexual harassment policy that contains a reasonable reporting procedure and is followed consistently, with complaints investigated quickly and thoroughly.
State Laws: Handbooks need to cover state laws as well as federal ones. This may result in a seamless integration for companies who have employees working in one state. However, companies that have employees working in multiple states must draft their handbook accordingly. Not only does this serve as a practical way to communicate state-level rights and protections to employees, but some laws specifically require being included in an employee handbook. Because of this, a generic statement that the company adheres to state laws is not always an easy way of compliance.
While the federal government has only successfully passed some legislation given the deadlock in Congress, many states have seen expansive legislative changes which can impact your handbook. Some of these legislative trends that need to be considered include protected groups (i.e., natural hair and protective hairstyles); restrictive covenants (i.e., non-compete and non-disclosure agreements); right to carry firearms; legalization of marijuana; paid sick or personal time; family and medical leave (paid and unpaid); and other protected time off (i.e., voting, emergency responders and victims of domestic violence or other crimes).
Some states have very specific criteria for compliant policies. For example, New York offers model Harassment Prevention and Expressing Breastmilk in the Workplace policies due to the specific criteria while also requiring all employers to include their HERO Act Plan in their handbook.
Legal Opinions and Decisions: Changes also come through the legal process, with courts issuing legal decisions that impact all employers. While this is not as prominent, these impacts could be just as important such as how the U.S. Supreme Court decisions in Faragher and Ellerth impact today’s harassment and sexual harassment language and training. Recent legal decisions have suggested changes to confidentiality language to incorporate the Defend Trade Secrets Act and to language regarding the employer’s right to monitor an employee’s emails, phone calls, etc., while removing the assumed obligation to do so.
What Can You Do? Make sure that you add updating your handbook to your to-do list now and repeat every year. Don’t try to navigate all of these legislative and legal requirements on your own. Consult an HR consultant or employment attorney to draft and/or review it for you.
Affinity HR Group can help you! Our HR Support Plan includes a fully customized employee handbook tailored to address your company’s unique policies and practices. Revisions are readily available upon request, ensuring a perfect fit for your organization. Connect with us at 877-660-6400 or hello@AffinityHRGroup.com to get started.