Overview: Employers should make sure that their policies and practices clearly convey to employees and supervisors the type of conduct that is strictly prohibited by the employer.
This may include, but is not limited to: violence/fighting; verbal abuse; theft; possession or use of illegal drugs in the workplace; inappropriate use of the internet, email, voice mail or other forms of electronic communication; sleeping and loafing on the job; gambling at work; workplace bullying; and harassment or employee discrimination.
These types of activities can have a detrimental effect on the employer's business as well as employee productivity and morale. Employers should make sure that employees and supervisors understand the parameters of prohibited conduct and let them know the disciplinary consequences.
The policies regarding prohibited conduct should be clearly defined so employees and supervisors are well aware of the employer's expectations. Further, all employees and supervisors should be instructed to report any prohibited conduct by co-workers or supervisors and bring it to the employer's attention so that corrective measures may be taken.
Trends: While employers have a clear right to manage their workforce and implement workplace rules and policies regarding prohibited conduct, employers should be careful due to recent guidance from the National Labor Relations Board (NLRB).
The NLRB has demonstrated that it is willing to strike down facially neutral employment policies which violate the right of both union and non-union employees to engage in protected concerted activity or collective action to improve workplace conditions under Section 7 of the National Labor Relations Act (NLRA).
For example, the NLRB has invalidated workplace polices that sought to make employee solicitation and social media use at work prohibited conduct because it determined that this may prevent employees from engaging in protected activity.
Thus, employers should narrowly draft policies and use specific examples of protected conduct to show that the employer is not trying to interfere with employee rights, but instead trying to protect the employer's legitimate business interests.
Author: Beth P. Zoller, JD, Legal Editor
Mississippi employers seeking to show their compliance with Mississippi's prohibition against texting and social networking while driving, to promote driving safety and to limit liability from accidents involving employees who are driving and using electronic devices for work-related purposes or while driving a company-owned vehicle should consider including this model policy statement in their handbook.
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In Makowski v. Smith Amundsen, LLC, No. 10-3330 (7th Cir. 2011), the 7th Circuit Court of Appeals decided whether an employer's representative's statement could be used to prove discrimination in a decision to terminate an employee on FMLA maternity leave.
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California employers with one or more employees seeking to comply with state law, to encourage and promote good health and to clearly advise employees of the prohibition against smoking in the workplace should consider including this model policy statement in their handbook.
California employers seeking to adopt a policy prohibiting the use, sale, possession, etc., of drugs and/or alcohol should consider including this model policy statement in their handbook.
HR guidance on ensuring that policies adequately advise employees and supervisors of prohibited workplace conduct and the consequences of engaging in such behavior.