If things get quiet around the workplace this summer, it may be a good idea to revisit your employee handbook and check out policies that may need to be reviewed and/or revised based on recent changes in federal, state and municipal law. With the first half of 2017 under our belts, some areas have been extremely busy in terms of legal developments affecting handbook policies.
Here are seven developments sure to affect your employee handbook:
1. Pregnancy Accommodation
Pregnancy accommodation continues to be a hot area as an increasing number of states and cities are expanding protections based on pregnancy, childbirth or related medical conditions. They are also requiring employers to provide reasonable accommodations unless doing so would create an undue hardship.
For example, Nevada and Vermont recently enacted laws requiring employers to provide pregnant women with reasonable accommodations. Nevada has also enhanced its breastfeeding protections. An employer should make sure to incorporate these requirements into their employee handbooks and policies on equal employment opportunity (EEO) and reasonable accommodation.
2. Leave Laws
Leave laws continue to be on the rise with states and municipalities requiring employers to provide various leaves to employees, such as paid sick leave, military leave, etc. For example, Arizona, Vermont and Washington recently enacted paid sick leave laws. Also, a host of cities have enacted or amended paid sick leave ordinances, including:
• St. Paul; and
• San Francisco.
And paid family leave has been enacted or amended in California, New York and San Francisco. Additionally, domestic violence leave protections have been enhanced in California and Illinois.
Meanwhile, Iowa, Missouri, New Mexico and Nevada have strengthened their military leave laws. With all of these measures, it is essential for employers to notify employees of the leave that they are entitled to and its requirements.
3. Equal Pay and Wage Transparency
It’s important to take note that a number of states and cities have significantly expanded equal pay provisions and enacted legislation promoting wage transparency, including:
• New York City; and
Some of these laws extend equal protections to all protected classes (beyond gender), prohibit employers from banning discussions regarding salaries and wages by and among employees, and prohibit employers from seeking information regarding salary history.
4. LGBT Protections
Employers should make sure that their employee handbooks are up to date when it comes to protections for employees who identify as lesbian, gay, bisexual or transgender (LGBT).
An increasing number of states and cities have enacted and/or strengthened equal employment opportunity protections and civil rights protections for LGBT individuals. For example, California and New York City now require employers who maintain a single-user toilet facility to identify it as an all-gender toilet facility and make it available for use by individuals of any sex. Employers may need to revise their EEO or reasonable accommodation policies as a result.
5. Employee Health and Safety
Your company’s handbook policies should always adequately protect the health and safety of the workforce. This includes providing notice to employees of the employer’s right to conduct drug and alcohol testing and promote a drug-free workplace. While an increasing number of states have legalized marijuana for medical (i.e., Arkansas, Florida, North Dakota and West Virginia recently enacted laws) and/or recreational purposes (i.e., Maine, Massachusetts and Nevada recently enacted laws), marijuana remains illegal under federal law. Also, West Virginia and Iowa have enhanced drug testing laws.
Employers should also make sure that policies regarding the use of mobile devices and texting while driving are up to date as states continue to restrict activities that threaten the safety of drivers and pedestrians on the road. Among the states recently enacting or amending laws in this area include:
• North Dakota;
• Texas; and
Lastly, employers should ensure that their smoke-free workplace policies are compliant as states such as Arkansas, Maine and Oklahoma have enhanced their protections.
6. Municipal Policies
Municipal policies in employee handbooks may need to be reviewed based on new minimum wage, predictable scheduling and leave measures at the big-city level. Very often, such laws are an attempt by cities to provide workers with additional rights and protections when it comes to wages, hours and working conditions.
However, employers should be aware that a number of states have recently enacted municipal preemption laws which prohibit municipalities from enacting legislation of various kinds.
7. National Labor Relations Act
Even with a Republican administration and Congress, the National Labor Relations Board has continued to exercise its authority and invalidate employee handbook policies in both union and nonunion workplaces if such policies infringe upon employees’ rights to engage in Section 7 protected, concerted activity and work collectively to improve their wages, hours and working conditions. The following are some types of policies that have been found to unlawfully restrict protected activity:
• Conflicts of interest policy;
• Outside employment/moonlighting policy;
• Confidentiality policy;
• Recording policy;
• Social media policy;
• Company property policy;
• Company’s use of information technology policy; and
• Telecommunications usage policy.