How to Update an Employee Handbook for 2016

Author: Beth P. Zoller, XpertHR Legal Editor

There have been a number of significant changes in the law on the federal, state and local level that have or will have a substantial impact on workplace policies and employee handbooks. As a result, it is critical for an employer to take the time to review, amend and properly update its handbook for 2016* so that it reflects the latest legal requirements and is in legal compliance.

It is important for an employer to understand what the legal update is; how it affects employers, HR and the workplace; and how to develop and implement policies and procedures to comply. Further, other updates may be needed based on internal changes (e.g., benefits, performance management) that are not fueled by legal changes. To update an employee handbook for 2016, an employer should take the following steps:

*Note: These legal developments and steps outlined cover laws passed between January 1, 2015, and December 1, 2015 and/or with effective dates from January 1, 2015, forward. An employer may not wish to include a specific policy reflecting a specific law until its effective date, but should be prepared for the upcoming changes.

Step 1: Update Equal Employment Opportunity Policies

In 2015, lawmakers at the state and local level continued to enact laws providing employment protections to new and emerging protected classes and expanding the coverage of equal opportunity laws. New laws prohibit discrimination and harassment against lesbian, gay, bisexual and transgender (LGBT) individuals, pregnant women, women who breastfeed and victims of sexual assault, domestic violence and stalking. Additionally, a number of new laws on the state and local level now provide interns, and in some cases volunteers, with the right to bring claims for discrimination, harassment and retaliation. Based on these changes, an employer should review and revise its employee handbook and equal employment opportunity (EEO) policies, which include policies on discrimination, harassment and retaliation, to incorporate these protections.

An employer should take affirmative steps to demonstrate that it provides equal employment opportunities to all individuals and fosters a diverse and inclusive workforce. Even if a state does not recognize a protected class, an employer may choose to go beyond the parameters of the law and reinforce the notion that all employees and applicants will be evaluated based on merit, skill and qualifications. An employer also may want to consider adding a catch-all phrase within its EEO policies providing protection to "any other classes protected by federal, state or local law," especially if the employer does not update its employment policies or employee handbook on a frequent basis.

Recent developments that affect EEO-related policies include:

Jurisdiction

Development (effective date)

XpertHR Legal Analysis

Handbook Policy Template and Guidance

California

Prohibits discrimination against domestic violence victims (1/1/15)

Prohibits discrimination against immigrants holding lawful driver's licenses (1/1/15)

Extends discrimination protections to interns and volunteers (1/1/15)

Requires abusive conduct training as part of supervisor harassment training (1/1/15)

Prohibits discrimination against public assistance recipients (1/1/15)

Prohibits discrimination against individuals requesting reasonable accommodations based on disability or religious belief (1/1/16)

EEO - Discrimination: California

Disabilities (ADA): California

EEO - Harassment: California

EEO - Retaliation: California

Training and Development: California

Employee Handbooks - Work Rules - Employee Conduct: California

Discrimination, Harassment and Retaliation Prevention Handbook Statement [5+ Employees]: California

Harassment and Retaliation Prevention Handbook Statement [1-4 Employees]: California

Disability Accommodation Handbook Statement: California

Religious Accommodation Handbook Statement: California

San Francisco, California

Implementing new rules regarding hiring, scheduling and other employment practices for chain stores operating in San Francisco (1/3/15)

Employee Handbooks - Work Rules - Employee Conduct: California

Schedules, Hours and Retention of Retail Workers (San Francisco) Handbook Statement: California

Connecticut

Extends discrimination and harassment protections to interns (10/1/15)

EEO - Discrimination: Connecticut

EEO - Harassment: Connecticut

EEO - Retaliation: Connecticut

Disabilities (ADA): Connecticut

EEO Handbook Statement: Connecticut

Delaware

Extends coverage of Persons with Disabilities Employment Protections Act (DEPA) to employers with 4 or more employees (1/31/15)

Prohibits discrimination against and requires reasonable accommodations for sexual assault, domestic violence or stalking victims (12/30/15)

EEO - Discrimination: Delaware

EEO - Retaliation: Delaware

Disabilities (ADA): Delaware

EEO Handbook Statement: Delaware

Accommodation for Victims of Domestic Violence, Sexual Assault or Stalking Handbook Statement: Delaware

District of Columbia

Provides protections for pregnant women (3/3/15)

Prohibits discrimination based on reproductive healthcare decisions (6/4/15)

EEO - Discrimination: District of Columbia

Disabilities (ADA): District of Columbia

Other Leaves: District of Columbia

EEO Handbook Statement: District of Columbia

Pregnancy Accommodation Handbook Statement: District of Columbia

Florida

Prohibits discrimination based on pregnancy (7/1/15)

EEO - Discrimination: Florida

EEO - Harassment: Florida

EEO - Retaliation: Florida

EEO Handbook Statement: Florida

Illinois

Extends harassment protections to interns (1/1/15)

Prohibits discrimination against and requires reasonable accommodations for pregnant women (1/1/15)

Regulations addressing pregnancy accommodation (11/4/15)

EEO - Discrimination: Illinois

EEO - Harassment: Illinois

Employee Handbooks - Work Rules - Employee Conduct: Illinois

EEO Handbook Statement: Illinois

Pregnancy Accommodation Handbook Statement: Illinois

Indiana

Prohibits discrimination based on employee's use of a protective order (7/1/15)

EEO - Discrimination: Indiana

Employee Discipline: Indiana

EEO Handbook Statement: Indiana

Maryland

Extends discrimination and harassment protections to interns (10/1/15)

EEO - Discrimination: Maryland

EEO - Harassment: Maryland

EEO - Retaliation: Maryland

EEO Handbook Statement: Maryland

Nebraska

Prohibits discrimination against and requires reasonable accommodations for pregnant women (7/13/15)

EEO - Discrimination: Nebraska

Disabilities (ADA): Nebraska

EEO Handbook Statement: Nebraska

Pregnancy Accommodation: Nebraska

New York

Prohibits discrimination based on familial status (1/19/16)

Permits sexual harassment claims against all employers regardless of number of employees (1/19/16)

EEO - Discrimination: New York

EEO - Harassment: New York

EEO - Retaliation: New York

EEO Handbook Statement: New York

Pregnancy Accommodation Handbook Statement: New York

North Dakota

Prohibits discrimination against and requires reasonable accommodations for pregnant women (8/1/15)

EEO - Discrimination: North Dakota

Disabilities (ADA): North Dakota

EEO Handbooks Statement: North Dakota

Pregnancy Accommodation: North Dakota

Texas

Extends sexual harassment protections to interns (9/1/15)

EEO - Harassment: Texas

EEO Handbook Statement: Texas

Utah

Prohibits discrimination against women who breastfeed (5/12/15)

Prohibits discrimination based on sexual orientation or gender identity (5/12/15)

EEO-Discrimination: Utah

EEO - Harassment: Utah

EEO - Retaliation: Utah

EEO Handbook Statement: Utah

Step 2: Review Reasonable Accommodation Policies

Reasonable accommodations continued to be at the forefront in 2015 on the federal, state and local levels. Under federal law, employees have a right to accommodations based on religion, disability, lactation and pregnancy. The Supreme Court tackled issues relating to accommodations in two important court cases in 2015. In EEOC v. Abercrombie & Fitch, the Court ruled that actual knowledge of an individual's need for a religious accommodation is not required by the employer for a valid discrimination claim to exist as long as the need for an accommodation was a motivating factor in an adverse employment decision.

In Young v. UPS, the Court ruled that workplace policies that provide accommodations to nonpregnant workers, but do not extend these same accommodations to pregnant workers, may violate the Pregnancy Discrimination Act. The Court ruled that an employer that treats pregnant employees differently must support this difference in treatment with legitimate and nondiscriminatory reasons. Based on this case, the Equal Employment Opportunity Commission (EEOC) updated its pregnancy guidance.

Additionally, a number of states and cities have enacted laws that require an employer to reasonably accommodate employees based on pregnancy, disability and religion. For example, Delaware recently enacted a law requiring accommodations for victims of domestic violence, sexual assault and/or stalking. Additionally, California amended the law prohibiting an employer from retaliating against an individual because he or she requested a reasonable accommodation based on religion or disability to protect employees regardless of whether the accommodation request is granted or not. In light of these developments, an employer should make sure to update its handbook to include policies on reasonable accommodations in the workplace and show compliance with these laws.

Recent developments that affect reasonable accommodation-related policies include:

Jurisdiction

Development (effective date)

XpertHR Legal Analysis

Handbook Policy Template and Guidance

Federal

EEOC issues guidance on pregnancy accommodations (6/25/15)

EEO-Discrimination: Federal

Disabilities (ADA): Federal

Disability Accommodation Handbook Statement

Lactation Accommodation Handbook Statement

California

Prohibits discrimination against individuals requesting reasonable accommodations based on disability or religious belief (1/1/16)

EEO - Discrimination: California

Disabilities (ADA): California

EEO - Retaliation: California

Employee Handbooks - Work Rules - Employee Conduct: California

EEO - Harassment: California

EEO Handbook Statement [5+ Employees]: California

Disability Accommodation Handbook Statement: California

Religious Accommodation: California

Delaware

Prohibits discrimination against and requires reasonable accommodations for sexual assault, domestic violence or stalking victims (12/30/15)

EEO - Discrimination: Delaware

EEO - Retaliation: Delaware

Other Leaves: Delaware

EEO Handbook Statement: Delaware

Accommodation for Victims of Domestic Violence, Sexual Assault or Stalking Handbook Statement: Delaware

District of Columbia

Requires reasonable accommodations for pregnant women (3/3/15)

EEO - Discrimination: District of Columbia

Disabilities (ADA): District of Columbia

Pregnancy Accommodation Handbook Statement: District of Columbia

Illinois

Prohibits discrimination against and requires reasonable accommodations for pregnant women (1/1/15)

EEO - Discrimination: Illinois

Disabilities (ADA): Illinois

Pregnancy Accommodation Handbook Statement: Illinois

Nebraska

Prohibits discrimination against and requires reasonable accommodations for pregnant women (7/13/15)

EEO-Discrimination: Nebraska

Disabilities (ADA): Nebraska

EEO Handbook Statement: Nebraska

Pregnancy Accommodation Handbook Statement: Nebraska

Nevada

Allows an employer to determine reasonableness of a miniature horse as a service animal in the workplace (10/1/15)

EEO - Discrimination: Nevada

Disabilities (ADA): Nevada

EEO Handbook Statement: Nevada

New York

Requires reasonable accommodations for pregnancy-related conditions (1/19/16)

Expands workplace breastfeeding rights (1/1/2016)

EEO - Discrimination: New York

EEO - Retaliation: New York

EEO - Harassment: New York

Disabilities (ADA): New York

EEO Handbook Statement: New York

Lactation Accommodation Handbook Statement: New York

North Dakota

Prohibits discrimination against and requires reasonable accommodations for pregnant women (8/1/15)

EEO - Discrimination: North Dakota

Disabilities (ADA): North Dakota

EEO Handbook Statement: North Dakota

Pregnancy AccommodationHandbook Statement: North Dakota

Rhode Island

Prohibits discrimination and requires an employer to provide reasonable accommodations to pregnant women (6/25/15)

EEO - Discrimination: Rhode Island

Disabilities (ADA): Rhode Island

EEO Handbook Statement: Rhode Island

Pregnancy Accommodation Handbook Statement: Rhode Island

Step 3: Comply With New and Updated Leave Laws

It is important for an employee handbook to be up-to-date and in compliance with the latest laws regarding leaves of absence and time off from work. This includes compliance with the federal Family and Medical Leave Act (FMLA) and rapidly changing laws on the state and local level. Additionally, a handful of states and several major cities passed laws on paid sick leave, domestic violence leave and other types of leave. Even a number of smaller municipalities in states such as California (e.g., Emeryville, Oakland) and New Jersey (e.g., Bloomfield, East Orange, Irvington, Passaic, Patterson) have enacted paid sick leave laws. An employer should be sure to incorporate such requirements into its workplace policies.

Additionally, an employer should make sure to avoid: (1) blanket policies that impose a maximum amount of leave time before an employee is automatically terminated; or (2) no-fault attendance policies that charge an absence against an employee regardless of the reason for the absence. Such policies do not take into account the employer's obligation to engage in the interactive process under the Americans with Disabilities Act (ADA) and ignore the fact that additional leave can be a reasonable accommodation. Leave policies should be flexible and should not penalize employees for legitimate absences.

Recent developments that affect leave-related policies include:

Jurisdiction

Development (effective date)

XpertHR Legal Analysis

Handbook Policy Template and Guidance

Federal

FMLA regulations revised following US Supreme Court decision amending definition of spouse (3/27/15)

FMLA: Federal

Family and Medical Leave Handbook Statement

California

Expands emergency rescue personnel leave to include an officer, employee or member of a disaster medical response entity sponsored or requested by the state (1/1/15)

Allows most California employees to accrue one hour of paid sick leave for every 30 hours worked, to a maximum of three days or 24 hours (7/1/15)

Amends and clarifies paid sick leave requirements (7/13/15)

Extends national guard protections to employees who are National Guard members of other states and privately employed in California (1/1/16)

Amends California Family Rights Act regulations (7/1/15)

Requires an employer to allow employees to use sick leave to address childcare or school emergencies and prohibits discrimination against an employee based on this (1/1/16)

Other Leaves: California

FMLA: California

USERRA: California

Employee Handbooks - Work Rules - Employee Conduct: California

Emergency Responder Leave Handbook Statement: California

Domestic Violence, Sexual Assault or Stalking Victim Leave [1-24 Employees] Handbook Statement: California

Domestic Violence, Sexual Assault or Stalking Victim Leave [25+ Employees] Handbook Statement: California

Paid Sick and Safe Time [Accrual Method] Handbook Statement: California

Paid Sick and Safe Time [Lump Sum Method] Handbook Statement: California

Military Leave Handbook Statement: California

School or Child Care Activities Leave Handbook Statement: California

Connecticut

Amends the method used to determine if an employer must provide paid sick leave and prohibits an employer from acting to avoid providing paid sick leave (1/1/15)

Other Leaves: Connecticut

FMLA: Connecticut

Employee Handbooks - Work Rules - Employee Conduct: Connecticut

Paid Sick Leave Handbook Statement: Connecticut

Illinois

Expands military leave to include leave and reinstatement rights for National Guard members who are called into active duty by the governor of Illinois or any other state (7/21/15)

Other Leaves: Illinois

USERRA: Illinois

Military Leave Handbook Statement: Illinois

Jersey City, New Jersey

Requires more employers to provide paid sick leave (12/27/15)

Other Leaves: New Jersey

FMLA: New Jersey

Paid Sick Time Handbook Statement [10+ Employees]: Jersey City, New Jersey

Paid Sick Time Handbook Statement [1-9 Employees]: Jersey City, New Jersey

Kansas

Amends state military leave law to apply to any employee working in Kansas and called to active duty by any state, not only Kansas (7/1/15)

Other Leaves: Kansas

USERRA: Kansas

Military Leave Handbook Statement: Kansas

Maine

Requires leave for municipal and volunteer firefighters (3/16/15)

Increases penalties for domestic violence leave violations (10/14/15)

Other Leaves: Maine

Emergency Responder Leave Handbook Statement: Maine

Maryland

Prohibits agreements to waive entitlement to leave under Maryland Flexible Leave Act and prohibits retaliation against employees for requesting leave (10/1/15)

Other Leaves: Maryland

FMLA: Maryland

Employee Handbooks - Work Rules - Employee Conduct: Maryland

EEO - Discrimination: Maryland

EEO - Retaliation: Maryland;

Employee Discipline: Maryland.

Leave to Care for Immediate Family Members Handbook Statement: Maryland

Massachusetts

Requires paid sick and safe time leave and adds safe harbor provision (7/1/15)

Amends parental leave law to cover all employees regardless of sex (4/7/15)

Other Leaves: Massachusetts

FMLA: Massachusetts

Employee Handbooks - Work Rules - Employee Conduct: Massachusetts

Maternity Leave Handbook Statement: Massachusetts

Paid Sick Time [11+ Employees] Handbook Statement: Massachusetts

Sick Time [1-10 Employees] Handbook Statement: Massachusetts

Parental Leave Handbook Statement: Massachusetts

Missouri

Amends National Guard status (4/13/15)

Other Leaves: Missouri

USERRA: Missouri

Military Leave Handbook Statement: Missouri

Montana

Extends employment protections to members of the national guard in other states who are employed in Montana (4/29/15)

Amends duty status of Montana National Guard members (4/13/15)

Other Leaves: Montana

USERRA: Montana

Military Leave Handbook Statement: Montana

Oregon

Requires paid sick and safe time for employees (1/1/16)

Allows use of accrued paid sick leave or personal business leave by employees who are domestic violence victims (1/1/2016)

Requires group health insurance benefits to be continued during family leave (1/1/16)

Clarifies provisions of family and medical leave law and domestic violence leave law (5/18/15)

Other Leaves: Oregon

FMLA: Oregon

Employee Handbooks - Work Rules - Employee Conduct: Oregon

Paid Sick and Safe Time Handbook Statement [10+ Employees; Accrual Method]: Oregon

Paid Sick and Safe Time Handbook Statement [10+ Employees; Lump Sum Method]: Oregon

Unpaid Sick and Safe Time Handbook Statement [1-9 Employees; Accrual Method]: Oregon

Unpaid Sick and Safe Time Handbook Statement [1-9 Employees; Lump Sum Method]: Oregon

Domestic Violence, Harassment, Sexual Assault or Stalking Victim Leave Handbook Statement: Oregon

Family and Medical Leave Handbook Statement [50+ Employees]: Oregon

Family and Medical Leave Handbook Statement (25-49 Employees): Oregon

Philadelphia, Pennsylvania

Requires Philadelphia employers to provide paid sick leave (5/13/15)

Other Leaves: Pennsylvania

FMLA: Pennsylvania

Sick Time Handbook Statement [1-9 Employees, Excluding Chain Establishments]: Philadelphia, Pennsylvania

Rhode Island

Allows leave for employees who are volunteer firefighters or volunteer ambulance department members (7/15/15)

Other Leaves: Rhode Island

Employee Handbooks - Work Rules - Employee Conduct: Rhode Island

Jury Duty Leave Handbook Statement:: Rhode Island

Emergency Responder Leave Handbook Statement: Rhode Island

Wisconsin

Allows employees to voluntarily choose to work without one day of rest in a consecutive seven-day period (7/14/15)

Employee Handbooks - Work Rules - Employee Conduct: Wisconsin

Hours Worked: Wisconsin

Mandatory Time Off/Day of Rest Handbook Statement: Wisconsin

Step 4: Update a Safe Driving Policy

As we become an increasingly mobile society in which employees are always on the go but need to be connected for business and personal issues, it is absolutely essential for an employer to draft, implement and enforce safe driving policies that prohibit distracted driving while driving a company vehicle or while on company time. By taking seriously safety on the road, an employer will protect the health and safety of employees, as well as third parties, and minimize the potential for employer liability. In recent years, the Occupational Safety and Health Administration (OSHA) has increased its enforcement related to workplace driving, including distracted driving policies, and encouraged employers to implement programs that keep their drivers and anyone else on the road safe. Under OSHA's General Duty Clause, it is part of an employer's legal duty to provide a safe working environment, which includes preventing drivers from texting while driving. Further, in 2015, a number of states enacted laws specifically addressing safe driving and prohibiting drivers from using hand-held devices. All employers, but particularly employers with employees who operate in these states, should make sure to update their safe driving policies to prohibit distracted driving. Further, an employer should make sure to enforce the policy, discipline those employees who violate it and stress that employee safety is paramount.

Recent developments that affect safe driving-related policies include:

Jurisdiction

Development (effective date)

XpertHR Legal Analysis

Handbook Policy Templates and Guidance

Colorado

Allows individuals to use earphones with a wireless device while driving (3/26/15)

Employee Communications: Colorado

HR and Workplace Safety: Colorado

Cell Phone Use / Texting While Driving Handbook Statement: Colorado

Maine

Prohibits commercial vehicle drivers from texting and using cell phones (10/15/15)

Prohibits novice drivers from using hand-held electronic devices (10/15/15)

Employee Communications: Maine

HR and Workplace Safety: Maine

Cell Phone Use / Texting While Driving Handbook Statement: Maine

Mississippi

Bans use of hand-held mobile devices while driving (7/1/15)

Employee Communications: Mississippi

HR and Workplace Safety: Mississippi

Cell Phone Use / Texting While Driving Handbook Statement: Mississippi

New Hampshire

Bans use of certain electronic devices while driving (7/1/15)

Employee Communications: New Hampshire

HR and Workplace Safety: New Hampshire

Cell Phone Use/Texting While Driving Handbook Statement: New Hampshire

Oklahoma

Bans texting while driving (11/1/15)

Prohibits drivers of commercial vehicles from communicating with hand held mobile devices (11/1/15)

Employee Communications: Oklahoma

HR and Workplace Safety: Oklahoma

Cell Phone Use / Texting While Driving Handbook Statement: Oklahoma

Rhode Island

Clarifies use of a wireless handset or a personal wireless communication device while driving (6/17/15)

Employee Communications: Rhode Island

HR and Workplace Safety: Rhode Island

Cell Phone Use / Texting While Driving Handbook Statement: Rhode Island

Step 5: Update Smoke-Free Policies

Smoke-free policies continue to be an important part of protecting employee health and making the workplace a more pleasant place to work. As a result, most states have laws that prohibit smoking in the workplace and in enclosed public spaces. An employer should also note that the use of e-cigarettes is on the rise as an alternative to smoking cigarettes and cigars. A handful of states and many municipalities prohibit the use of e-cigarettes in the workplace. Therefore, it is advisable that any smoke-free workplace policy also specifically prohibit the use of e-cigarettes.

Recent developments that affect smoking-related policies include:

Jurisdiction

Development (effective date)

XpertHR Legal Analysis

Handbook Policy Templates and Guidance

Connecticut

Prohibits the use of e-cigarettes and other vapor products in numerous places of employment (10/1/15)

Employee Health: Connecticut

Employee Discipline: Connecticut

Smoke-Free Workplace Handbook Statement: Connecticut

Delaware

Prohibits the use of e-cigarettes in all public places where smoking is prohibited (10/5/15)

Employee Handbooks - Work Rules - Employee Conduct: Delaware

Employee Health: Delaware

Employee Discipline: Delaware

Smoke-Free Workplace Handbook Statement: Delaware

Hawaii

Prohibits use of e-cigarettes in the workplace where smoking is prohibited (1/1/16)

Employee Handbooks - Work Rules - Employee Conduct: Hawaii

Employee Health: Hawaii

Employee Discipline: Hawaii

Smoke-Free Workplace Handbook Statement: Hawaii

Oregon

Extends workplace smoking ban to prohibit use of aerosolized or vaporized inhalants (1/1/16)

Employee Handbooks - Work Rules - Employee Conduct: Oregon

Employee Health: Oregon

Employee Discipline: Oregon

Smoke-Free Workplace Handbook Statement: Oregon

Step 6: Address Violence and Weapons in the Workplace

Workplace violence can take many forms, including physical violence, harassment, intimidation and disruption of the workplace. It can affect co-workers, customers and visitors. Under the General Duty Clause of the Occupational Safety and Health Act, an employer is obligated to protect employees from workplace violence. Additionally, many states have workplace safety and violence laws in place. Therefore, it is important for an employer to have policies to prevent workplace violence, ban weapons from the workplace and ensure all employees' safety. A workplace weapons policy aims to avoid major acts of violence from occurring by prohibiting weapons in the workplace or on the employer's premises. Such a policy also offers guidance, defines prohibited behavior and outlines reporting criteria and responsibilities under a workplace violence prevention program.

Recent developments that affect violence- and weapons-related policies include:

Jurisdiction

Development (effective date)

Handbook Policy Template and Guidance

Tennessee

Prohibits an employer from taking adverse employment action against an employee based solely on transportation or storage of a firearm or ammunition in an employer parking area (7/1/15)

Employee Discipline: Tennessee

Workplace Security: Tennessee

Weapons in the Workplace Handbook Statement: Tennessee

Texas

Allows an employer to continue to prohibit weapons in the workplace, but requires businesses regulated by the Texas Alcoholic Beverage Commission to have additional requirements (1/1/16)

Employee Handbooks - Work Rules - Employee Conduct: Texas

Employee Discipline: Texas

Workplace Security: Texas

Weapons in the Workplace Handbook Statement: Texas

Step 7: Ensure Equal Treatment for Same-Sex Couples

The past year was a breakthrough year for the issue of gay marriage, which finally saw acceptance on the federal level. In June 2015 in Obergefell v. Hodges, the Supreme Court ruled that the Constitution requires all states to license same-sex marriages and to recognize such marriages that are lawfully licensed and performed out of state. This historic ruling clears the way for same-sex marriages nationwide by declaring that same-sex married couples can no longer be denied the benefits that are provided to opposite-sex married couples.

This decision represents a major shift for employers because it removes the uncertainty of the lawfulness of marriage, which had depended on the state in which an individual resides and an employer does business. An employer no longer has to deal with differing state laws regarding benefits for same-sex spouses, as same-sex spouses must be treated equally as compared to opposite-sex spouse in all states. Same-sex spouses may be legally married in all states and eligible for the same protections under federal laws (e.g., Consolidated Omnibus Budget Reconciliation Act, Family and Medical Leave Act, Employee Retirement Income Security Act) as well as state laws. In light of this landmark development, an employer should revisit its policies and practices regarding EEO and discrimination, employee benefits, family and medical leave, other leaves of absence, marital status and tax information.

Step 8: Comply With the National Labor Relations Act

Under Section 7 of the National Labor Relations Act (NLRA) both union and nonunion employees have the right to engage in protected concerted activity and collectively discuss wages, hours and working conditions. In recent years, the National Labor Relations Board (NLRB) has been very proactive in pursuing employers for having handbook policies that can be reasonably interpreted as infringing upon the right of employees to engage in protected conduct. In doing so, the NLRB has found policies such as those dealing with social media, contact with the press, confidentiality, investigations and employee communications to violate employee rights. In fact, in March 2015, the NLRB Office of the General Counsel released a comprehensive and detailed report regarding recent employer policy cases and the effect on employee handbooks. Thus, an employer should be extremely careful when drafting such policy provisions and avoid overly broad and ambiguous language and blanket rules that can be interpreted as interfering with the employee right to engage in protected concerted activity. An employer should make sure that its handbook policies are specific as to what is and what is not permitted in the workplace and that they do not infringe upon employee rights. Further, with regard to certain workplace policies such as discussion of wages, an employer should make sure that any revision complies with significant NLRB decisions and guidance.