Five Need to Know Trends About Employee Handbooks

When it comes to employee handbooks, employers should commit to managing them as ever-evolving documents which should be kept current and updated and amended based on changes and trends in the law, culture and society.

Here are five need to know trends employers should keep in mind when developing and implementing employee handbooks:

1. Be Aware of NLRB Activity. Section 7 of the National Labor Relations Act (NLRA) provides both union and non-union employees with 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 handbook policies which 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.

As a result, employers 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 right of employees to engage in protected concerted activity.

2. Address social media, BYOD and developing technology. It is critical for employers to develop and implement policies addressing social media, bring your own device (BYOD) and other forms of emerging technology such as Google Glass and biometrics. Because there are significant risks in permitting employees to use such technology, it is imperative for employers to create strong policies to shield themselves from liability.

Employees should have a clear idea of what is permissible and what is impermissible conduct. Further, employers should put employees on notice that they may be monitored and have a diminished expectation of privacy in the workplace.

Also, given the quickly evolving technologic and legal landscape, it is vital for employers with a social media and/or BYOD policy to stay apprised of developments and update the policies to reflect changes. Legal counsel review is highly recommended for such policies.

3. Demonstrate Diversity Through Equal Opportunity Policies. EEO policies prohibiting discrimination, harassment and retaliation, and providing reasonable accommodations when needed, are a must for all employers in today’s workplace. Employers should frequently revisit their policies regarding equal opportunity, discrimination and harassment as states and municipalities are increasingly providing employment protections to new and emerging protected classes such as:

Lesbians, gays, bisexuals and transgender (LGBT) individuals;
• Pregnant women;
• Domestic violence victims; as well as
• The homeless and the unemployed.

Even if an employer’s state or city does not prohibit such discrimination, it may be best practice to ban it as this will demonstrate that the employer fosters a tolerant and diverse workforce. Of course, in doing so employers must be sure to enforce such policies.

4. Incorporate State and Municipal Laws. Employers should be aware that a number of states and cities across the US have taken steps to protect employee health and welfare as well as advance employee rights. For example, although there are no complementary federal laws, states and municipalities have enacted legislation to address medical marijuana; e-cigarettes in the workplace; paid sick leave (as well as other types of employee leave); same sex marriage; LGBT rights; reasonable accommodations for pregnant women; social media privacy laws; and the use of cell phones while driving. Prudent employers should integrate these laws into their workplace policies.

5. Ensure Attendance and Leave Policies Do Not Violate the ADA and FMLA. Employers should be especially cautious and make sure that their attendance and leave policies are flexible and do not violate either the Americans with Disabilities Act (ADA) the Family and Medical Leave Act (FMLA) or similar state or local laws. For example, under the ADA, workers suffering from a disability are entitled to reasonable accommodations which may include leave.

When faced with a request for a reasonable accommodation based on disability, an employer has an affirmative duty to engage in the interactive process on a case-by-case basis and provide a reasonable accommodation unless doing so would create an undue hardship. Further, workers should not be penalized for legitimate absences under the FMLA or similar leave laws.

Blanket policies that impose a maximum amount of leave time before employees are automatically terminated, or no-fault attendance policies which charge an absence against an employee regardless of the reason for the absence, directly thwart the employer’s obligation to engage in the interactive process and ignore the fact that additional leave can be a reasonable accommodation. So, it is essential for employers to make sure that their leave and attendance policies comply with the ADA, FMLA or similar laws.

XpertHR has developed a 50-state Employee Handbooks tool that is authored by attorneys at Littler Mendelson. National content and 15 states were released on Nov. 4. 2014; additional states will be released on a staggered basis until all are live a few months thereafter. Key municipal handbook content is included in the service. Detailed “when to include” guidance, policy template language and extensive “employer guidance” for each of the hundreds of policies also are included.


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