Employee Handbooks - Work Rules - Employee Conduct: Arkansas
Federal law and guidance on this subject should be reviewed together with this section.
Authors: E. B. Chiles IV, Cameron C. McCree and Amber-Davis Tanner, Quattlebaum, Grooms, Tull & Burrow PLLC
- Arkansas is an at-will state. Employers should be careful in drafting employee handbooks because certain language in a handbook may create an implied contract. See Employment At-Will.
- Arkansas employers can conduct medical testing and drug testing with respect to employers and applicants provided certain criteria are met. See Medical Examinations and Drug Testing.
- Arkansas law prohibits smoking in all places owned, operated, and leased by the State and in public places and enclosed areas at all places of employment. See Smoking.
- Employers should be knowledgeable of important state-law rules concerning off-duty conduct by employees. See Off-Duty Conduct.
- Arkansas employers who choose to monitor employee activities and electronic communications should give prior notice of their intentions to engage in such conduct. Employers who do not warn employees that monitoring may occur in the workplace face potential liability for invasion of privacy. See Wiretapping and Eavesdropping; Surveillance.
Arkansas is an at-will employment state. Employers intending to create an at-will employment relationship should take care not to create an implied contractual relationship with the employee under which the employee may be terminated only for cause. Employers should avoid:
- Durational promises of employment (including probationary periods); and
- Handbook provisions and other policies that limit the employer's discretion to terminate the employee for any lawful reason.
Handbooks that merely describe the methods for dismissal or that specify without limitation kinds of conduct that could result in dismissal will not be sufficient to be deemed an employment contract requiring cause to be shown before dismissal. See Gladdin v. Arkansas Children's Hosp., +292 Ark. 130; +728 S.W.2d 501 (1987).
The Arkansas Constitution, similar to the United States Constitution, protects the right to free communication of thoughts and opinions. +Ark. Const. Art. 2 § 6. The appellate courts in Arkansas have not specifically addressed whether the free speech protections in its Constitution protect employee political expression.
Nepotism and Employee Dating
Arkansas does not generally prohibit employers from making hiring decisions on the basis of nepotism. However, the Arkansas Civil Rights Act (ACRA), which protects the same categories of employees as Title VII, may be indirectly impacted by this hiring practice. If an employer hires through word of mouth or through nepotism, those practices may have a disparate impact on a class protected by the ACRA.
Arkansas law does prohibit some public sector employers from using nepotism in hiring.
- The Arkansas Constitution prohibits relatives of Game and Fish Commissioners and any other State officers from working for the Commission, and
- Arkansas, by statute, prohibits relatives of members and employees of state boards and commissions from being appointed to or employed by the board or commission on which their relative serves or by whom their relative is employed.
Arkansas law does not prevent employers from discouraging employee dating. Employers should ensure compliance with federal law concerning such policies and should be sure to include them in employee handbooks.
Alcohol and Drug Use
Arkansas employers may prohibit employees from using alcoholic beverages while on duty. +Ark. Code Ann. § 16-123-102 (excluding alcoholism from the definition of disability under the ACRA). Employers, however, should be careful to follow federal requirements concerning alcoholics.
Employers can sue employees or possess or distribute illegal drugs in the workplace. +Ark. Code Ann. §§ 16-124-101 et seq.
Medical Examinations and Drug Testing
Public and private employers can require applicants and employees to take physical, medical examination, or drug tests as a condition of employment or continue employment if the physical, medical examination or drug test is provided at no cost to the employee or applicant and the employee is provided with a free copy of the test results upon rewritten request. Arkansas law does not mandate the manner or type of drug testing procedures employers must use. +Ark. Code Ann. § 11-3-203.
Employers who violate these provisions may be fined up to $100.00.
The Arkansas Department of Labor has the responsibility to administer this law. The Department may:
- Adopt administrative rules to implement the law; and
- Sue to recover any improper charges, fees, wage deductions, or other payments made by employees as a result of the employer's violation of this law.
Because federal law continues to prohibit use of marijuana or cannabis and it remains scheduled as a Schedule I controlled substance with no acceptable medical use, an employer:
- Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
- May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.
However, the Arkansas Medical Marijuana Amendment of 2016 permits the use of marijuana for medical purposes. In addition, the law contains discrimination protections. However, the law specifically states that an employer need not permit or accommodate marijuana use or ingestion in the workplace, or an employee working while under the influence of marijuana.
An employer should continue to follow applicable drug testing policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance.
Arkansas has passed an amendments to the law to clarify an employer's obligations. +2017 Bill Text AR H.B. 1460. The amendments:
- Narrow existing discrimination protections from "individuals" to "applicants or employees," as defined eliminate individual liability under the discrimination provisions as well as detail actions that employers may take to ensure a productive, drug-free workplace.
The amendments contain the following definitions:
- Employee means an individual employed by an employer, not to include:
- An individual employed by his or her parents, spouse or child;
- An individual participating in a specialized employment training program conducted by a nonprofit sheltered workshop or rehabilitation facility;
- An individual employed outside the state; or
- An independent contractor.
- Good faith belief means reasonable reliance on fact, or that which is held to be factual, without intent to deceive and without reckless or malicious disregard for the truth. Good faith belief may be based on the following:
- Observed conduct, behavior or appearance;
- Information reported by a person believed to be reliable, including without limitation a report by a person who witnessed the use or possession of marijuana or marijuana paraphernalia by an applicant or employee in the workplace;
- Written, electronic or verbal statements from the employee or other individuals;
- Lawful video surveillance;
- A record of government agencies, law enforcement agencies or courts;
- A positive test result for marijuana;
- A warning label, usage standard, or other printed material that accompanies instructions for usable marijuana;
- Information from a physician, medical review officer or a dispensary;
- Information from reputable reference sources in print or online; and/or
- Any other reliable or accurate information source.
- Safety sensitive position means:
- Any position involving a safety sensitive function under US Department of Transportation drug and alcohol testing regulations, or other federal or state rules, guidelines or regulations; or
- Any position designated in writing by an employer as a safety sensitive position in which a person performing the position while under the influence of marijuana may constitute a threat to health or safety, such as positions that require:
- Carrying a firearm;
- Performing life-threatening procedures;
- Working with confidential information or documents pertaining to criminal investigations;
- Working with hazardous or flammable materials, controlled substances, food or medicine; or
- Attentiveness, such as those positions that include operating, repairing, maintaining or monitoring heavy equipment, machinery, aircraft or motor vehicles as part of job duties.
- Under the influence means symptoms of the current use of marijuana that may negatively affect the performance of job duties or tasks, or that constitute a threat to health or safety. The definition includes:
- Symptoms of the employee's speech, walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, odor, or other irrational or unusual behaviors that are inconsistent with usual conduct;
- Negligence or carelessness in operating equipment, machinery, or production or manufacturing processes;
- Involvement in an accident that results in:
- Damage to equipment, machinery or property;
- Disruption of a production or manufacturing process;
- An injury; or
- Other symptoms causing a reasonable suspicion that the current use of marijuana may negatively impact the performance of the job duties or tasks, or constitute a threat to health or safety.
An employer may:
- Establish and implement a substance abuse or drug-free workplace policy that may include a drug testing program that complies with state or federal law;
- Take action under the policy to discipline employees when it has a good faith belief that an employee:
- Possessed, smoked, ingested or otherwise used marijuana while on the premises of the employer or during the hours of employment; or
- Was under the influence of marijuana while on business premises or during the hours of employment; or
- Fail to hire an applicant to a safety sensitive position based on a good faith belief that the qualifying patient was currently using marijuana.
Taking action under a policy lawfully includes:
- Implementing, monitoring or taking measures to assess, supervise or control the job performance of an employee. See Performance Appraisals;
- Reassigning an employee to a different position or job duties;
- Placing an employee on paid or unpaid leave;
- Suspending or terminating an employee;
- Requiring an employee to successfully complete a substance abuse program before returning to work; and/or
- Refusing to hire an applicant.
The Arkansas Clean Indoor Act of 2006 (Clean Indoor Act) prohibits smoking in all places owned, operated, and leased by the State and in public places and enclosed areas at all places of employment. The general prohibition on smoking includes without limitation:
- Common work areas;
- Conference and meeting rooms;
- Private offices;
- Health care facilities;
- Employee lounges;
- Stairs; and
The Clean Indoor Act further prohibits all individuals, businesses, and other entities from discriminating against individual who complain about a violation of the Clean Indoor Act. Employers must notify employees about the provisions of the Clean Indoor Act.
The owner operator, manager or other person in control of each place of employment must display clearly and conspicuously a No Smoking sign in the workplace if smoking is prohibited by Arkansas law. +Ark. Code Ann. § 20-27-1806. The owner, operator, manager or other person in control of the place must also remove all ashtrays unless the ashtray is a permanent fixture to the structure (the ashtray must have been affixed before July 21, 2006).
Individuals who own or operate one of the following may exempt themselves from the Clean Indoor Act:
- Private residences (unless the residence is used as a child care, adult daycare, or health care facility);
- Hotel and motel rooms that are identified to potential renters as smoking rooms (for hotels with 25 or more rooms, not more than 20% of the rooms may be so designated);
- All workplaces with fewer than three employees (this exemption does not apply to any public place);
- Designated smoking areas within long-term care facilities;
- Workplaces of any manufacturer, importer, or wholesaler of tobacco products;
- Restaurants and bars that restrict admittance to individuals who are 21 years old and older (the secondhand smoke cannot infiltrate into an area where smoking is prohibited and the business must display a health warning sign); and
- Designated smoking areas on the gaming floor of any franchisee of the Arkansas Racing Commission.
Violations of the Clean Indoor Act are punishable of a fine of not less than $100.00 but not more than $500.00.
The Arkansas Department of Health has responsibility for ensuring compliance with the Clean Indoor Act. +Ark. Code Ann. § 20-27-1807. The provisions of the Clean Indoor Act are cumulative, and they do not prohibit state and local governing authorities from enacting more restrictive provisions. +Ark. Code Ann. § 20-27-1808.
E-cigarettes are banned from all public and charter school property in the state of Arkansas. This includes busses and other school-owned vehicles. Signs should be posted at entrances and the front of busses stating that these devices are banned.
Arkansas also prohibits smoking marijuana in places where the smoking of tobacco is prohibited by the Arkansas Clean Indoor Air Act of 2006 as well as inside vehicles. As a result of the amendment to the medical marijuana law, the smoking of marijuana for medicinal use or otherwise is prohibited in company vehicles and places of employment. +2017 Bill Text AR H.B. 1400. See Employee Health: Arkansas.
Even where the at-will relationship would ordinarily allow an employer to terminate employees without cause, special statutory or constitutional protections may create independent actionable claims. For example, disciplining an employee for comments made outside of the workplace that are unrelated to the employee's ability to do his or her job, may trigger a free speech claim. See Political Activity. In addition, the methods that employers use to obtain information about employee conduct off-premises may be actionable under common-law invasion of privacy claims. Arkansas recognizes four types of actions based upon privacy invasions: an intrusion upon seclusion; public disclosure of embarrassing private facts; casting in a false light; or the appropriation of one's image or likeness without permission. These causes of action are further discussed in another section of this chapter. See Employee Privacy: Federal; Employee Privacy: Arkansas.
Arkansas does not have any laws governing the use of an employee's arrest records. Employers who are interested in considering such records should ensure compliance with federal law.
Arkansas recognizes that an employer may face liability for negligent hiring (failure to check applicant's background), failure to provide a safe environment, and inadequate training of employees or supervisors (negligent training or retention). See Negligent Hiring: Arkansas.
Employers may protect its employees and invitees from violence and threats of violence by:
- Filing criminal charges against the violent individual; and
- Seeking an injunction (injunction may be temporary such as a temporary restraining order or preliminary injunction or a permanent injunction) that prohibits the violent individual from committing any further unlawful acts at the work site
The employer must prove by a preponderance of the evidence that the employer or the employer's employee or invitee has:
- Suffered unlawful violence by the individual;
- Received a threat of violence which can reasonably be construed as a threat that can be carried out at the employer's work site; or
- Been stalked or harassed at the employer's work site.
The court order or injunction should include language directing appropriate law enforcement to enforce the court's order.
Employers who exercise their right to file criminal charges or seek an injunction are immune from civil liability for taking that action, unless the employer fails to act in good faith. An employer who chooses not to exercise these rights shall not be held liable for negligence.
Arkansas permits the carrying of concealed weapons provided the individual has the proper permit; however, a concealed weapon permit has its limits. The holder of the permit is not permitted to carry a concealed weapon in places such as police and sheriff stations, courthouses, churches and schools, colleges and universities. See +Ark. Code Ann. § 5-73-306; Workplace Security: Arkansas.
While there is no explicit parking lot storage law, a person, including an employer or entity, exercising control of a physical location can prohibit individuals from carrying concealed weapons on the premises by posting a sign that states that "carrying a handgun is prohibited." The sign must be readable from at least 10 feet away, and the sign should be posted on the entrance of the location. If the place does not have a roadway entrance, the notice may be posted anywhere on the premises. +Ark. Code Ann. § 5-73-306(19).
Arkansas generally prohibits felons and those who have been adjudicated mentally ill or involuntarily committed to a mental health institution from possessing a gun. See +Ark. Code Ann. § 5-73-103; Workplace Security: Arkansas.
An amendment to Arkansas' firearms law expressly allows employees to transport or store firearms in locked, privately owned motor vehicles in company parking lot. +2017 Bill Text AR S.B. 37. Although an employer may still prohibit firearms within its premises, the amendments provide that an employer cannot prohibit an employee who is a concealed handgun licensee from transporting or storing a legally owned handgun in the employee's private motor vehicle in a company parking lot when the handgun:
- Is lawfully possessed;
- Is stored out of sight inside a locked private motor vehicle in the private employer's parking lot;
- Is stored inside a locked personal handgun storage container that is designed for the safe storage of a handgun; and
- The employee has in his or her possession the key to the personal handgun storage container. However, an employee is not required to store the handgun in the container until he or she is exiting the vehicle.
Wiretapping and Eavesdropping
In Arkansas, conversations can be recorded provided that at least one party consents. +Ark. Code Ann. § 5-60-120. Employers should not record or otherwise intercept any communication by its employees without consent of at least one participant to the communication. This consent may be obtained from the employee by including an appropriate policy provision in the employee handbook.
Aransas prohibits video voyeurism. Specifically, Arkansas law prohibits the use of any camera or other image recording device to secretly observe, view, photograph, film, or videotape a person in a residence, place of business, school, or other structure, if the person:
- Is in a private area out of public view,
- Has a reasonable expectation of privacy, and
- Has not consented to the observation
Arkansas's video voyeurism law also prohibits the use of any camera or other image recording device to secretly observe, view, photograph, film, videotape, or view by electronic means the person:
- In order to observe any portion of the person's body that is covered with clothing and for which the person has a reasonable expectation of privacy;
- Without the person's knowledge or consent; and
- Under circumstances in which the person has a reasonable expectation of privacy.
The following monitoring is excluded from Arkansas's voyeurism law:
- Monitoring conducted under a court order;
- Security monitoring operated or directed by the occupant of the residence;
- Security monitoring operated or directed by the owner or administrator of a place of business, school, or other structure;
- Security monitoring operated in a motor vehicle used for public transit;
- Security monitoring and observation associated with a correctional facility;
- Video recording or monitoring conducted by a law enforcement officer within the scope of his or her official duty; and
- Certain radiological testing required by law.
Violation of Arkansas's voyeurism law is a felony.
Employers who seek to conduct surveillance and monitoring of employees in the workplace should be aware of law as well as the potential for common law invasion of privacy claims. Employers who choose to monitor employee activities should give prior notice of their intentions to engage in such conduct. Employers who do not warn their employees that monitoring may occur face potential liability for invasion of privacy. Employers should consider creating carefully drafted handbook policies that preserve the employer's right to monitor employees' job-related activities.
Arkansas has passed a law that includes employee protections regarding microchip implantation. See Employee Privacy: Arkansas. The law covers both workers employed by an employer and independent contractors. Effective July 24, 2019, the law specifically allows an employer to use alternative noninvasive technology that is intended to track the movement of an employee, but the law sets limits on an employer's use of microchips.
A microchip may be implanted if the employee provides the employer with written consent. However, an employee may request the removal of the microchip at any time. Once a request is made, the microchip must be removed within 30 days of the request.
If an employee is terminated, then the microchip implant must be removed within 30 days of the termination. If an employee elects to retain an implanted microchip after the termination of employment, then the employee assumes responsibility for all costs associated with the microchip.
The law contains retaliation protections. See Employee Discipline: Arkansas.
Timekeeping, Attendance, Work Schedules and Shifts
Employers should maintain records of when employees worked and records showing that they were appropriately compensated for any overtime payments.
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