With the end of the year rapidly approaching, it is crucial for employers and HR to revisit and reassess their employee handbook and see if it needs to be updated or amended in any way for 2020. New laws and trends may need to be incorporated, workplace situations addressed and older policies updated, revised or removed.
Littler shareholder Meredith Shoop presented an XpertHR webinar in which she highlighted some important areas of your employee handbook to review and potentially update.
Given the growing number of employment laws at the state and local level, multistate or multijurisdictional employers should make sure to properly address all relevant laws where they operate or their employees reside. Employers should consider:
• Instituting a national handbook and separate state supplements;
• Separate handbooks for each state;
• A national handbook with required policies for each state; and
• An employee policy portal where each policy statement is separate and not visible to all employees.
Each approach has pros and cons, and it important to choose what works best for each workplace.
FMLA and Attendance Policies
Under the Family and Medical Leave Act (FMLA), employers must provide written notice to employees regarding their rights and include notice in the employee handbook setting forth leave entitlements. And, they must be aware that some states and cities have leave laws that can and do go further.
Thus, while it may be wise to have attendance polices in place, do not be too rigid to avoid potential legal violations as employees may be entitled to protected leave under various federal, state and local leave laws. Further, qualified employees with a disability may be entitled to a reasonable accommodation in the form of leave or time off. Be sure to engage in the interactive process and carefully manage leave requests.
During her webinar, Shoop noted that employers need to be careful about workplace polices addressing rounding time and make sure to pay employees for each hour worked. A failure to do so, she said, may lead to wage and hour lawsuits and potentially costly class action lawsuits. If your organization chooses to implement such a policy, be sure that it equally benefits both the employer and the employee.
In many workplaces, confidentiality policies are essential to protect confidential data and proprietary information such as:
• Trade secrets;
• Customer lists;
• Business and marketing strategies; and
• Intellectual property.
However, in implementing and enforcing a confidentiality policy, be sure not to unnecessarily restrict whistleblowers in the workplace. Further, remember that the NLRB provides employees in both union and nonunion workplaces with the right to engage in protected, concerted activity or collective action to improve their wages, hours and working conditions.
To ensure a safe and secure workplace, it may be wise to implement a no weapons policy. However, be aware that some state laws specifically ban employers from prohibiting employees from having guns locked in their cars and out of plain sight in the employer’s parking lot. Therefore, make sure that any weapons policies are carefully tailored to the laws of each state.
Marijuana Use and Drug Testing
Despite the fact that marijuana remains an illegal substance with no approved medical use under federal law, most states now permit medical marijuana use and several have expanded that to include recreational use. Further, jurisdictions such as Nevada and New York will soon restrict preeemployment drug screening for marijuana use.
Accordingly, be cautious when crafting any workplace policies addressing marijuana use or drug testing. Keep in mind that some states require an employer to permit marijuana use to accommodate a disability.
If an employer chooses to address marijuana use in the employee handbook, be sure to define what constitutes a safety sensitive position for which drug testing may be necessary. Also, consider if drug testing is necessary given the duties and responsibilities of the particular position.
Pay Equity Policies
Shoop pointed out the greater emphasis of late on pay equity and promoting fair pay for women. For instance, laws restricting employer inquiries with respect to salary history are intended to stop the perpetuation of any wage gap and address previous pay inequality.
Pay secrecy laws ensure that employees may freely discuss wages without fear of being disciplined or reprimanded for doing so. Be cognizant of these laws and eliminate language explicitly or implicitly prohibiting employees from discussing their wages, benefits or other compensation.
Pregnancy and Lactation
States and cities are continuing to amend their laws to expand protections for women experiencing pregnancy, childbirth or related medical conditions including lactation. In fact, some jurisdictions now require an employer to have a policy in place addressing this.
Pregnancy accommodations may include:
• Light duty;
• Modifying equipment;
• Telecommuting; and
• Additional leave.
While the Fair Labor Standards Act (FLSA) requires employers to provide a clean and private space to express breast milk and unpaid breastfeeding breaks, state or local laws may also require an employer to provide:
• A surface to place a breast pump and personal items;
• A place to sit;
• Access to electricity needed for a breast pump;
• Access to a sink or running water; or
• A refrigerator or cooling device for storing breast milk.
An employer should also consider whether it is legally required to pay employees for breastfeeding breaks.
Paid Sick Leave and Paid Parental Leave Policies
Finally, paid sick leave and paid parental leave laws are rapidly changing and expanding protections for employees. It is critical for employers to be aware of the differences between state and local laws and take a measured approach tailored to their workforce when incorporating such leave laws into their employee handbook.
What’s your number one concern in amending your employee handbook for 2020? Please let us know by leaving a comment below.