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Employee Handbooks - Work Rules - Employee Conduct: Federal

Employee Handbooks - Work Rules - Employee Conduct requirements by state

Authors: Theresa Donahue Egler, Jennifer Rygiel-Boyd and Ryan T. Warden, Ogletree Deakins; (Work Rules Concerning Employee Codes of Conduct, Ethics and Conflicts of Interest; Work Rules and Policies Addressing Workplace Violence; Work Rules and Policies Regarding Horseplay; Work Rules Concerning Bullying and Harassment).

Jason Habinsky, Haynes & Boone; (Guidelines for Employee Handbooks, Work Rules and Policies; Work Rules Concerning Political and Charitable Activity and Employee Expression of Views; Work Rules Regarding Use of Employer Equipment, Vehicles and Communication Systems; Prohibited Conduct; Work Rules Regarding Off Duty Conduct; Work Rules Regulating Employee Dress; Grooming and Personal Appearance; Work Rules Regarding Employee Work Schedules and Shifts; Work Rules Regarding Attendance, Tardiness and Timekeeping).

Summary

Guidelines for Employee Handbooks, Work Rules and Policies

An employee handbook allows employers to inform employees of workplace rules in an efficient and uniform manner. Employers can use a handbook to set forth expectations for employees. Employers should follow these guidelines:

  • Memorialize written policies. Memorializing employment policies in a handbook available to all employees is extremely important for:
    • Strengthening an employer's defense against employee lawsuits by providing clear, written notice of employer policies;
    • Allowing a business to run more efficiently by developing policies so that employees clearly know what behavior is expected in common situations; and
    • Avoiding conflicts between employees by setting employee obligations, and letting employees know what to do and who to go to if problems and issues arise.
  • Keep it simple. Employers should avoid unnecessary jargon, legal terms and details in handbook. Using plain language will ensure that all employees understand the policies. The manual should set forth the employer's policies with enough detail for employees to understand, but without confusing them. By removing unnecessary detail from policies, an employer can also reduce the need to frequently update policies.
  • Keep it current. Because federal and state laws are constantly changing, employers should make sure that the employee handbook stays up-to-date. See State Requirements.
  • Distinguish between employer-wide policies and job-specific or department-specific policies. It is worth considering having separate handbooks for employees in different departments. One handbook or section of a handbook might be applicable to all employees, and a separate handbook or handbook section might only be applicable to certain departments or positions. This way, employees can quickly and easily identify which sections apply to them and to their departments. Depending on the size of the employer and the different types of employees, it may be easier for the employer to create separate handbooks for different groups of employees, such as:
    • Union vs. nonunion employees;
    • Exempt vs. nonexempt employees;
    • Supervisors vs. employees; and
    • Employees in different departments.
  • Establish clear standards. Work rules should have an obvious relationship to the employer's business goals. This will ensure that the rules make sense to employees and are easy to understand and follow.
  • Distribute the handbook universally. All employees should receive a copy of an employee handbook so that every employee knows what is expected of them.
  • Enforce the policies and rules in the handbook uniformly. All policies should be applied equally to all employees regardless of the department or level of the individual so as to avoid claims of discrimination or unequal treatment.
  • Require employees to acknowledge acceptance of the employer's policies in writing. All employees should be required to acknowledge in writing that the employee has read and understands the policies contained in the handbook as this will potentially counter any arguments an employee may make about being unaware of an employer policy. It is best practice for an employer to provide employees with a reasonable amount of time to read, review, understand and consent to the policies in the employee handbook. Employees should be required to sign an acknowledgement form when provided with the employee handbook upon commencement of employment and periodically thereafter. An employer may want to consider obtaining an acknowledgement from an employee each time it distributes a new or amended policy as this will memorialize that the employee received, read, understand and agreed to abide by the policy's terms. This is particularly true when it comes to policies regarding discrimination, harassment, retaliation, employee privacy and monitoring.
  • Notify employees of relevant changes Employees should be notified of any changes made to policies in the handbook and required to acknowledge awareness and understanding of such changes in writing.
  • Make It Readable and Interesting.It is essential for an employer to make the employee handbook and its policies more relevant and attempt to connect with employees while at the same time reminding them of important information and conveying workplace rules and guidelines. In order to accomplish this, an employer may want to seek out ways to make an employee handbook more fun and engaging though the use of hypotheticals, practical examples, anecdotes and narratives. An employer may wish to write policies in a more casual and/or conversational tone which will be more interesting for readers. An employer also may want to be creative and use colors, visuals, pictures and graphics as well as experiment with new forms and media such as digital and video.

Communicating Work Rules

There are three main areas of work rules that the employee handbook should cover. Policies consist of the employer's philosophy and high level overall plans. Procedures detail the particular ways that employees should handle certain situations. Workplace rules cover what employees should and should not do in the workplace.

Policies

Employers may want to begin an employee handbook with a brief mission statement and description of the employer's history and business management philosophy. Any other policies particular to the business or to the employer's specific management style should also be conveyed in this introduction section. See Types of Workplace Rules.

Procedures

Any procedures that the employee will need to follow in a given situation should also be clearly laid out in the employee handbook with step-by-step detailed descriptions of what to do in frequently encountered situations. For example, employees should be informed about what to do and who to see to request time off, or the steps to take if an employee is the victim of harassment or discrimination. It is impossible to provide procedures for every given situation, but the more procedures that can be provided, the more efficiently difficult situations will be handled.

Work Rules

Work rules should be used to guide action and should be as explicit as possible, leaving little room for interpretation or confusion.

Implementing Policies, Procedures and Work Rules

Employers must make sure that all employees are aware of and understand the organization's policies, procedures and work rules. Therefore, universal distribution and communication is critical. This can be performed via:

  • Handbooks and manuals. Handbooks provide the first, and probably the best, way to communicate work rules to employees. Putting all relevant policies in the employee handbook will make it easier for employees to look up information. Employees should be required to sign an acknowledgement form after reading the handbook stating that the employee understands and consents to the policies set forth in the handbook. See Guidelines for Employee Handbooks, Work Rules and Policies.
  • Posters and notices. Posters and notices can be used to offer regular reminders to employees of the employer's policies, procedures and work rules. Notices are especially helpful if something has changed and the employer wants to make sure that all employees are aware of the change. Employers also are required by law to post notices of certain federal and state laws like:
    • Job safety and health protection under the Occupational Safety and Health Act (OSH Act);
    • Fair Labor Standards Act (FLSA);
    • Equal employment opportunity laws;
    • Family and Medical Leave Act (FMLA);
    • Americans with Disabilities Act (ADA);
    • Uniformed Services Employment and Reemployment Rights Act (USERRA); and
    • State labor laws.
  • Letters and memoranda. Employer-wide letters or memoranda are helpful when a particular policy is revised or department changes are implemented. This form of communication is best when policies are too complicated to be explained in a poster or notice.
  • Employer intranet. Use of an employer's internal website or intranet is the quickest way to communicate policy changes to employees. Employers can send emails whenever a relevant policy has changed, with a link to the policy and instructions to the employee requiring a review of the changes. This eliminates the need for an employer to regularly circulate paper copies of changes to relevant policies and guarantees that all employees with email addresses are informed of policy changes.

Purpose of Employee Handbook

The employee handbook should be used to:

  • Convey the corporate mission and philosophy of business. This helps customize the handbook so that it conforms to the specifics of the employer's business. See HR Strategy, Management and the Law.
  • Define employment relationship. The handbook should make clear, where applicable, that all employees are at-will - i.e., an employee can be terminated at any time for any reason, except those prohibited by law. An at-will employment policy provides a valuable defense for employers in response to employee breach of contract claims. A written at-will policy prevents the handbook from being used by employees to stand in for a contract for implied employment. Reserving the right to change, amend or revise the handbook at the employer's discretion, and requiring some acknowledgement by the employee of receipt of the handbook, should also be included. See Terms of Employment: Federal.
  • However, employers should note that National Relations Labor Board cases have suggested that an overly broad at-will disclaimer in an employee handbook, personnel manual or an employee offer letter may violate Section 7 of the NLRAby infringing upon the rights of both union and non-union employees to engage in a protected concerted activity (working collectively to improve working conditions). Therefore, employers should consult with counsel to ensure that their at-will disclaimers, acknowledgements, offer letters and policies do not contain any language that may be viewed by the NLRB as overly broad and interfering with an employee's right to engage in protected concerted activity and redraft and revise such documents accordingly.
  • Provide information about benefits, paid time off, compensation, etc. Because the handbook will be the place that employees turn to for any information concerning their employment, the handbook should also include information on benefits and compensation packages offered to employees. This information may only be short blurbs with the full details provided to the employee in another set of documents, but there should be some mention of these policies.
  • Provide policies that are required by law. The employee handbook should include all policies related to the FMLA, if applicable, the Consolidated Omnibus Budget Reconciliation Act (COBRA), discrimination and harassment.

    See
    Types of Workplace Rules;
    EEO - Harassment: Federal;
    EEO - Discrimination: Federal;
    FMLA: Federal.

  • Provide work rules, standards of conduct, disciplinary procedures and other information. Employees should know what is expected of them in the workplace with regard to all issues from dress code requirements to employee ethics. See Employee Discipline: Federal.

Compliance with the National Labor Relations Act

The National Labor Relations Board reminds employers that the mere maintenance of a work rule may violate the National Labor Relations Act (NLRA) if it has a "chilling" effect on an employee's protected activity. Employees are permitted to engage in communications and conduct in connection with concerted activity protected under Section 7 of the NLRA (such as such as discussions of terms and conditions of employment and union organizing), and work rules that have a chilling effect on Section 7 activity may be found unlawful.

As such, when drafting and/or amending any workplace policies or provisions to be included in an employee handbook, an employer should be particularly careful not to infringe upon the employee right to engage in protected concerted activity. Examples of rules and policies frequently at issue include:

  • Confidentiality rules;
  • Employee conduct/professionalism rules;
  • Third party/media communications rules;
  • Logos, copyrights and trademark rules;
  • Photography and recording rules;
  • Rules restricting employees from leaving work; and
  • Conflict of interest rules.

The NLRB's Office of the General Counsel released guidance (GC-18-04) explaining the standard that the NLRB will use in balancing any negative effect of a facially neutral rule on employees' ability to exercise their Section 7 rights and the rule's connection to employers' right to maintain discipline and productivity in their workplace.

Under the guidelines issued by the General Counsel, ambiguities in facially neutral rules will not be interpreted against employers and generalized provisions will not be interpreted as banning all activity that could conceivably be included.

However, the guidance also is clear that a neutral handbook rule does not render protected activity unprotected:

  • Rules specifically banning protected concerted activity or promulgated directly in response to organizing or other protected concerted activity remain unlawful; and
  • Applying a facially neutral rule against employees engaged in protected concerted activity is still unlawful.

Types of Workplace Rules

There are several categories of workplace rules that should be described in detail in the employee handbook:

Attendance and Tardiness Policies

The employer should emphasize the importance of punctuality and regular attendance in the handbook. The handbook should explicitly state that numerous unexplained absences or tardiness provide grounds for discipline, and should describe what form that discipline will take, up to and including termination.

See

Work Rules Regarding Attendance, Tardiness and Timekeeping;

Employee Discipline: Federal;

Workers' Compensation: Federal.

Employee Rights and Responsibilities

The different rights and responsibilities of employees should be clearly outlined in the handbook, including privacy rights, religious freedom and cultural or diversity rights. Many federal statutes require that employers inform employees of their rights. See EEO - Discrimination: Federal.

Management Rights and Responsibilities

The handbook should explicitly state that the employer reserves the right to change any of the policies, rules or procedures outlined in the employee handbook, and that the employer retains the right to monitor employees and terminate those who do not follow the policies, rules or procedures. See Prohibited Conduct.

Employer Work Rules and Policies

This section would include any general rules and policies that apply to all employees. The specific behavior and actions that will not be tolerated by the employer should be defined and listed in a clear and coherent manner. See Work Rules Regarding Workplace Violence, Horseplay and Harassment; Prohibited Conduct.

Harassment Policies

Employers also should use the handbook to remind employees that harassment of all kinds, including sexual harassment and harassment of those in other protected classes, is illegal, and that it violates employer policies. Employers should make clear that unwelcome sexual (or other harassing) comments or conduct will not be tolerated and that the employer will treat any complaints very seriously.

See

Offensive Behavior;

EEO - Harassment: Federal;

Employee Discipline: Federal.

Nondiscrimination and Affirmative Action Policies

The handbook also should make it clear that employees will not be discriminated against on the basis of race, religion, sex, nationality, age, disability or other protected characteristics under federal and state laws.

See

EEO - Discrimination: Federal;

Disabilities (ADA): Federal.

Employers should be aware of the duties and obligations owed to employees as outlined in federal statutes such as:

  • Title VII;
  • The Equal Pay Act (EPA);
  • The Age Discrimination in Employment Act (ADEA); and
  • The Americans with Disabilities Act (ADA).

If the employer has an affirmative action policy, or is required to have one under the law, such a policy also should be set forth in the handbook. See EEO - Affirmative Action: Federal.

Benefits Policies

Employers should outline employee eligibility for health and dental plans, 401(k) stock options, retirement plans, vacation pay, sick pay, and life and disability insurance, if applicable. For programs that are managed or run by an outside provider, employers should provide employees with the official plan documents that explain those rules. Employers need to be aware of relevant state laws on the provision of benefits. See State Requirements. Any policy should also make clear that in the event that the policy and the terms of a benefit plan conflict, the terms of the benefit plan will control.

Family and Medical Leave Act (FMLA) Policy

The FMLA provides eligible employees with the right to take up to 12 weeks of unpaid leave for birth or adoption, to care for a seriously ill immediate family member or for any serious health issues of the employee. The FMLA applies to employers with 50 or more employees. Many states have similar laws that apply to employers that do not employ enough workers to meet the FMLA's requirements.

See

State Requirements;

Family and Medical Leave Act;

FMLA: Federal.

Wage and Hour and Compensation Policies

The handbook should set forth the normal working hours for full-time employees and rules for part-time employees, including how overtime compensation is authorized and calculated. In this section, the handbook should also explain the differences between exempt employees (who are not entitled to minimum wage and overtime under the Fair Labor Standards Act) and nonexempt employees. +29 U.S.C. § 201 et seq.

See

Overtime: Federal;

Minimum Wage: Federal.

The employer should also clearly advise employees:

  • Which are the regular paydays;
  • How to record time spent working;
  • Required hours of work; and
  • What the employee is permitted in terms of rest periods, break periods or lunch breaks.

Policies Regarding Temporary Leaves

Employees may need time off for a variety of reasons, including jury duty, court appearances or family obligations. For all of types of temporary leave, employers should develop set policies that address whether compensation is provided and notice requirements.

See

Laws Affecting Absenteeism and Attendance;

Other Leaves: Federal.

USERRA and Military Leave Policies

USERRA provides leave and job protection rights for employees who perform military duty or any type of uniformed service. Employers should make employees aware of their rights under USERRA, and emphasize that discrimination or retaliation against any person who serves in or applies to be a member of a uniformed service will not be permitted.

See

Uniformed Services Employment and Reemployment Rights Act;

USERRA: Federal.

Consolidated Omnibus Budget Reconciliation Act (COBRA) Policy

COBRA provides a safe harbor for employees and their families to maintain health insurance at the employee's own expense in the event of the employee's termination or in the event of a separation or divorce from the insurance policy holder. Employers should explain the COBRA policy to employees so employees are notified of their rights immediately upon commencement of employment. +29 U.S.C. § 1161 et seq. See Health Care Continuation (COBRA): Federal.

Privacy Policies

Employers also should make employees aware of their privacy rights regarding internet use, email and social media. Employers can monitor employee activity while employees are using employer-owned equipment or devices, but should first inform employees that such monitoring will be conducted. See Employee Privacy: Federal.

Electronic Monitoring Policies

Employers may generally monitor employee workplace activities. Employers should first determine the goals to achieve by monitoring and then determine the most effective and efficient ways to achieve those goals. See Employee Privacy: Federal.

Smoking Policies

Employers should develop a written policy for on-the-job smoking in the employee handbook. Employers should check state laws and local ordinances to make sure that the smoking policy is in compliance, as some states and cities prohibit or significantly restrict workplace smoking.

See

Work Rules Concerning Smoking, Alcohol and Drug Use;

State Requirements;

Employee Health: Federal.

Solicitation Policy

Employers may also want to implement a nonsolicitation or nondistribution of literature policy to control and manage the workplace, and to prevent employees from causing distractions with nonwork issues during work time. Some employers also view solicitation policies as a tool to handle union organizing campaigns.

See

Solicitation and Distribution;

Labor Rights and Enforcement: Federal.

Disciplinary Policies

The employee handbook should clearly outline prohibited conduct that will be cause for discipline. Employers may want to emphasize that the list is nonexclusive, but specify conduct and actions such as:

  • 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; and
  • Harassment or discrimination.

Employers may want to outline a progressive discipline policy so that supervisors know how to handle inappropriate behavior.

See

Work Rules Regarding Workplace Violence, Horseplay and Harassment;

Prohibited Conduct;

Discipline;

Employee Discipline: Federal.

Policies on Drugs and Alcohol

If the employer has an established policy on drug or alcohol testing, that policy should be described in the employee handbook. Similarly, if the employer has a policy that prohibits employees from using drugs or alcohol, on substance abuse counseling or in regard to employee assistance programs, all of that information should be included in the handbook.

See

Employee Privacy: Federal;

Preemployment Screening and Testing: Federal;

Employee Health: Federal.

Policies on Safety and Workers' Compensation

Employers should emphasize in the handbook that employee safety is a major concern and a top priority of the employer. Employees should be advised to strictly follow all safety rules and immediately report any potentially dangerous conditions.

See

Work Rules and Policies Addressing Workplace Violence;

HR and Workplace Safety (OSHA Compliance): Federal;

Workers' Compensation: Federal.

Policies on Education or Tuition Reimbursement

Employers may issue education or tuition reimbursements to employees. Employers must clearly outline the details of any reimbursement policy, including the maximum amount of reimbursement and the procedure for receiving any such reimbursements.

Credit Union Participation Policy

If an employer offers some form of credit union participation to its employees, the employer should make employees aware of the existence of the credit union, as well as eligibility for the credit union and the credit union's membership requirements.

Code of Ethics

The employer's ethics code should be clearly outlined in the employee handbook. Employees should be encouraged to comply with the code of ethics, notified of the consequences of noncompliance and instructed on how to report ethics violations. See HR Management: Federal.

Policies on Competition, Confidentiality and Intellectual Property

It is important for employers to make their policy on competition, confidentiality and intellectual property available to employees to protect the employer's rights.

See

Employee Privacy: Federal;

HR Management: Federal.

Policies Regulating Employee Dress, Grooming and Personal Appearance

If employers desire to regulate employee dress, grooming and personal appearance, this should be done explicitly through a detailed, widely distributed policy. Employers also should make sure to administer such policies uniformly and consistently. See Work Rules Regulating Employee Dress, Grooming and Personal Appearance.

Work Rules Concerning Political and Charitable Activity and Employee Expression of Views

Political Activity

Constitutional Protections

Private sector employees have limited First Amendment rights in the workplace, and their freedom of speech may be fairly restricted. Employees who work in the public sector, for governmental entities, have greater First Amendment speech protections, unless statements are made in relation to the individual's duties as an employee rather than as a private citizen. See Garcetti v. Ceballos, +547 U.S. 410 (2006).

Some states explicitly protect employee political expression, and the employer cannot discipline or discharge an employee unless the employee's political expression interferes with the employee's work. See State Requirements.

The First Amendment does not bar employers from implementing dress code policies that prohibit employees from wearing political items at work, but employees must have the right to display labor insignia under the National Labor Relations Act (NLRA). +29 U.S.C.A. §§ 151 et seq. See Labor Relations.

Lobbying and Political Campaigning at Work

The best way to regulate political campaigning at work is to develop and enforce a nonsolicitation policy prohibiting employees from soliciting others for political purposes during work. The employer should make sure to prohibit employees from engaging in political lobbying or campaigning instead of performing their job duties during work time, and to discipline any employee who violates the policy.

To prevent campaigning and lobbying over the internet, the employer also should implement and enforce policies stating that the employer's computer systems may only be used for legitimate business related purposes. See Employee Privacy: Federal.

Some state laws protect against retaliation or discrimination on the basis of political activity or affiliation, so the employer should have a set policy on this issue so as to avoid employee discrimination and retaliation claims.

See

State Requirements;

EEO - Discrimination: Federal;

EEO - Retaliation: Federal.

Charitable Activity

Employers should consider establishing a charitable activity policy to apply to both employee donations and the employer's own sponsorship efforts.

Employer Sponsorship of Charity

Employers can contribute to charities in a variety of ways. Some employers pick charities to which to donate on an annual basis, others organize fundraising drives, and others support their employees' charities. In any event, the employer should have a consistent policy. Even though it is not possible for an employer to sponsor every charity and employers will pick the ones that matter most to the organization, it should not appear to employees that an employer is sponsoring one type of charity over others. With that being said employers cannot force employees to donate to specific charities. Public sector employers face additional restrictions under state and federal laws. See State Requirements.

Employee Support for Charity

Employers can encourage employee interest in charitable activities by matching employees' charitable contributions. If employers decide to do so, any limits on this support should be made clear, including any limitations on the types of charities that would be subject to any matching policy.

If the employer does not want employees soliciting for charities while at work, the employer should have a policy banning solicitation completely. If the employer allows employees to solicit for charities at work, it should set guidelines, such as prohibiting solicitations using employer equipment or setting specific times and places that are appropriate for solicitation.

Political and Charitable Activity Rules and the NLRA

In drafting any workplace rules or policies regarding political or charitable activity, employers should be mindful that a work rule prohibiting employees from engaging in protected concerted activity or one that can be reasonably construed as attempting to prohibit protected concerted activity may be found unlawful in violation of the NLRA. With respect to political activity, an employer may not discipline employees who participate in political advocacy and conduct aimed at making the employer aware of issues related to wages, hours or working conditions or that has a direct relationship to an employee's working conditions. Similarly, employee communications and appeals to legislative bodies or government agencies are protected where the communications and appeals relate to working conditions. Political advocacy of employment-related matters during nonwork time in nonwork areas is protected. On-duty political advocacy that is specifically related to an employment concern is subject to restrictions imposed by lawful and neutrally applied work rules. Additionally, leaving or stopping work to engage in political advocacy for or against a specific employment concern is also subject to restrictions imposed by lawful and neutrally applied work rules. Further, employees may be entitled to use the employer's computer, email, internet and social media in the course of protected concerted activity.

Solicitation and Distribution

Employers should also consider implementing separate policies forbidding or restricting workplace solicitation or distribution of literature. Any policy that an employer decides to implement must be enforced, and enforced uniformly. If enforcement is lax or inconsistent, courts have held that such policies are meaningless, even if they exist on paper in some form. See Four B Corp v. NLRB, +163 F.3d 1177 (10th Cir. 1998). In implementing any policy on solicitation and distribution, employers should consider the following:

  • Causes. Employers should not differentiate between the causes behind solicitation, whether the solicitation is political, charitable, social or religious in character. Employers should have a uniform policy that applies equally to all employee solicitation in order to avoid potential discrimination claims.
  • Work areas versus nonwork areas. If solicitation is permitted, employers may limit it to nonwork areas. A work area is a location in which job tasks are completed, whether it is a production line, the sales floor or general office space. Nonwork areas include bathrooms, locker rooms, cafeterias, lobbies and parking lots. Any limitations on solicitation should include clear definitions of work areas and nonwork areas to avoid any misunderstanding or confusion.
  • Break time versus working time. Absent compelling circumstances, an employer cannot ban employee solicitation on employer premises during nonworking time. Working time is considered to be the time when an employee is expected to be performing work tasks, but it does not include time before or after the shift or break time, even if the breaks are paid.
  • Employees versus nonemployees. Employers may prohibit nonemployee union organizers from entering private employer property for solicitation and distribution so long as:
    • The union can reach employees through other avenues; and
    • The employer does not discriminate by allowing other nonemployees access.
      See Union Activities; Labor Relations.
  • Use of employer electronic media, computer systems and internet. Employees do not have the right to use employer-provided electronic systems for solicitation without approval from the employer. To avoid confusion, the employer should clarify this from the beginning in the employee handbook or other policy document distributed to all employees. See Employee Privacy: Federal.
  • Uniform application. The key to a nonsolicitation or restricted solicitation policy is applying the policy uniformly. Applying the policy uniformly also prevents discord amongst employees and claims of favoritism or discrimination.
  • Compliance with the National Labor Relations Act.. It should be noted that under the NLRA a work rule prohibiting employees from engaging in protected concerted activity or one that can be reasonably construed as attempting to prohibit protected concerted activity may be found unlawful. For example, a work rule prohibiting the distribution of literature in work areas and prohibiting solicitation during working time may be held unlawful if it restricts distribution by electronic means in work areas when employees have a right to receive electronic information while in work areas during non-working time.
    However, rules prohibiting the distribution of literature in work areas and prohibiting the solicitation and distribution of literature during employee working time and rules prohibiting solicitation and distribution by nonemployees on company premises may be deemed lawful.

However, rules prohibiting the distribution of literature in work areas and prohibiting the solicitation and distribution of literature during employee working time and rules prohibiting solicitation and distribution by nonemployees on company premises may be deemed lawful.

Practical Example

If Susie is allowed to sell candy bars to fundraise for her child's soccer team during working time and in work areas, the employer cannot prohibit Dan from distributing a union pamphlet at the same time and in the same location.

Union Activities

The NLRA prohibits employers from implementing policies that forbid all union communications, or from creating lawful policies implemented in a discriminatory manner towards unions. +29 U.S.C.A. §§ 151 et seq. See Labor Relations.

Union members have the right to wear union insignia at work unless the employer can show that special circumstancesexist. See Starwood Hotels & Resorts Worldwide Inc.348 NLRB No. 24 (2006). Special circumstancesoccur if the union insignia jeopardizes employee safety or is likely to damage machinery and products, and the employer bears the burden of proving that such circumstances exist.

Employees do not, however, have the right to use employer equipment without authorization for union related activities, and the employer can prohibit nonemployees from soliciting at any time on employer property. See Labor Relations.

Work Rules Concerning Employee Codes of Conduct, Ethics and Conflicts of Interest

Employee Codes of Conduct

The legal driver for employee codes of conduct is the US Sentencing Guidelines for Organizations (Guidelines), which were first issued by the United States Sentencing Commission in 1991. The Guidelines provide that employers can mitigate exposure to fines for employee criminal conduct by demonstrating an effective compliance program.

When originally issued in 1991, the Guidelines identified seven minimum steps for an effective compliance program. These included:

  1. Establish standards and procedures;
  2. Appoint high level personnel to oversee compliance;
  3. Do not delegate to a person with a propensity to engage in illegal activities;
  4. Communicate standards through training and disseminating information;
  5. Establish monitoring, auditing and reporting systems;
  6. Enforce standards through discipline; and
  7. Respond appropriately to offenses and take steps to prevent further offenses.

The 1991 Guidelines led to the adoption of codes of conduct, as well as the establishment of anonymous compliance hotlines, by employers across the country.

The proliferation of corporate scandals in the early 2000s led to amendments to the Guidelines in 2004. While a number of the companies that were involved in these scandals had compliance programs that, on paper, met the seven minimum requirements, there was a finding that the companies did not walk the talk. The 2004 amendments to the Guidelines imposed the following:

  • The seven minimum steps became requirements;
  • A new emphasis on ethical conduct, beyond legal compliance;
  • The requirement that boards of directors take significant responsibility (referred to as tone at the top);
  • The employer conducts periodic risk assessments; and
  • The person with operational authority reports to the governing authority, and has adequate resources, authority and direct access to the board of directors.
  • More information regarding the Guidelines is available on the US Sentencing Commission website.

What the Code of Conduct Should Include

The US Sentencing Guidelines for Organizations and its amendments establish that:

  • Codes of conduct should require that employees conduct business on behalf of their employer in a law abiding and ethically responsible manner.
  • Codes should define the basic standards of conduct that are expected of employees and provide that employees who violate those standards will be subject to disciplinary action, up to and including termination and possible civil and/or criminal liability.
  • Employees should be required to report any suspected or actual violations of the code. The failure to report such violations also may result in disciplinary action, up to and including termination.
  • Employees should sign an annual certification of compliance with the code, in which the employees represent that they personally have complied with the code and know of no suspected or actual violations of the code or, alternatively, they reported any such violations.
  • Codes should generally contain a strict prohibition against retaliation with respect to any person who, in good faith, reports a suspected or actual violation of the code, even if he or she turns out to be wrong.
  • Employers should advise employees that anyone who fabricates a violation or reports a violation in bad faith will be subject to disciplinary action, up to and including termination.
  • Employers also should notify employees of established telephonic or online compliance or ethics hotlines, through which employees can report suspected or actual code violations anonymously. This enables employees who fear reprisal to report violations consistent with reporting obligations, knowing that their identity will be protected.

To Whom the Code of Conduct Should Apply

Codes of conduct apply to all employees, from entry-level employees up to the CEO.

Who Administers the Code of Conduct

The chief compliance officer and the employer's executives are generally responsible for administering the code of conduct. Many employers establish the role of chief compliance officer who has responsibility for developing, overseeing and enforcing the employer's code of conduct.

This role should be given to a high level employee, often the general counsel, who has the authority and resources to enforce the code. Many employers also place a higher level of responsibility on executives to lead by example, to be effective role models for other employees and to demonstrate a strong tone at the top with respect to legal compliance and ethics.

Practical Example

Sue works as an administrative assistant in the Acme Company procurement department. Her responsibilities include preparing and revising contracts with company vendors, including XYZ Company, negotiated by her boss, Bob, a procurement manager. She recently learns that Joe at XYZ Company took Bob and his wife on an all expenses paid trip to Hawaii for a week. Sue knows that Bob's acceptance of such a lavish trip from Joe violates Acme's code of conduct. But Sue likes Bob, who always gives her excellent performance ratings, and does not want to "rat" him out. She also is fearful that she may be fired if she does.

Is Sue required to report Bob to the company?

Yes, most codes require employees to report suspected or known violations even if they personally are not involved in the offending conduct. If Sue does not report Bob, she could be subject to disciplinary action herself.

What can Sue do to overcome her fear of reprisal?

Most companies have established compliance or ethics hotlines, which permit employees to report violations of the law or code anonymously. Sue can satisfy her obligation to report Bob by making an anonymous complaint through the company hotline.

The core purpose of codes of conduct is to ensure compliance with laws and to prevent or deter criminal conduct by employees. Accordingly, codes typically address the following:

  • Compliance with anticorruption laws. This prohibits bribes, payments or favors to foreign officials to obtain or retain business, or making improper payments through third parties for the same purpose. This is aimed at ensuring compliance with the US Foreign Corrupt Practices Act, as well as foreign anticorruption laws. +15 U.S.C. §§ 78dd-1 et seq.
  • Compliance with competition laws. Codes prohibit employees from entering into any discussions, formal or informal, or understandings with competitors regarding any aspect of the employer's business, including sharing or agreeing to pricing, costs, salaries, terms of sale, market share, bidding or methods of distribution. This is aimed at ensuring compliance with the US antitrust laws, as well as foreign competition laws.
  • Compliance with money laundering laws. This prohibits any agreement or action that violates the money laundering laws of the United States or of any country where the employer, its suppliers or customers conduct business. Questionable financial transactions involving the transfer of cash or cash equivalents are generally subject to scrutiny by the employer's finance or legal departments.
  • Compliance with insider trading laws. This prohibits employees--who have access to material, nonpublic information about their employer or a third party that, if disclosed, could impact the value of publicly traded securities--from disclosing such "insider information" or acting on it for their own personal benefit.
  • Compliance with import/export laws. This requires compliance with any trade embargo laws.

Practical Example

Mary and Beth both worked in the HR department of Acme Bank and became good friends. Both have since left Acme and now work in HR for competing companies. They meet for lunch one day, and Mary asks Beth what her company's merit program will be this year for their employees. Beth tells Mary that her company has budgeted for a three percent merit increase overall.

Have Beth and/or Mary violated any law or their company's code of conduct?

Yes, sharing salary information under these circumstances would violate the antitrust laws, as well as most company codes of conduct. This conduct could result in substantial civil liability and even criminal prosecution.

Ethical Conduct and Legal Compliance

Many codes contain standards that address ethical conduct in the workplace and compliance with important employment laws. These include workplace conduct, such as:

  • Promoting diversity and an inclusive work environment that fosters respect and dignity for all in the workplace;
  • Requiring that all employment decisions be made without regard to race, color, religion, national origin, age, gender, disability or other legally protected classifications as required by federal, state and local antidiscrimination laws;
  • Prohibiting sexual harassment or other workplace harassment based on legally protected classifications, such as race, color, religion, national origin, age and disability;
  • Prohibiting workplace violence, including threats, intimidation and bullying;
  • Requiring strict compliance with all child labor laws;
  • Prohibiting all forms of forced or compulsory labor;
  • Prohibiting the use, sale, distribution and possession of illegal drugs and the consumption of alcohol in the workplace or reporting to work in an impaired condition (Many codes provide that the employer has the right to conduct drug/alcohol testing, including random testing as allowed by law, to ensure compliance.);
  • Protecting the health and safety of all personnel in the workplace; and
  • Maintaining the confidentiality of employee personal information, consistent with state identity theft protection laws and other privacy laws.

Codes of Conduct and the NLRA

An employer should proceed with caution when providing a list of prohibited conduct so as to not infringe upon employee rights under Section 7 of the NLRA. A work rule prohibiting employees from engaging in protected concerted activity or one that can be reasonably construed as attempting to prohibit protected concerted activity may be found unlawful.

Complying with standards of conduct should not prevent an employee from raising complaints or concerns about, for example, wages or discussing those concerns with co-workers. The NLRB has found general prohibitions against discourteous or disrespectful conduct to be unlawful when they could be interpreted as prohibiting potentially disruptive complaints about wages and other terms and conditions of employment. Further, the NLRB has also found workplace rules that make a blanket prohibition against heated conversations and offensive comments to be unlawful as such rules could infringe upon the right to engage in protected concerted activity.

However, an employer may lawfully ban discrimination, offensive or harassing conduct in violation of the employer's discrimination and harassment policies. An employer should make every effort to consult legal counsel with questions about what employee conduct may and may not be prohibited. If an employer works with union employees, the collective bargaining agreement may also dictate which behaviors are permitted and not permitted.

Conflicts of Interest

To ensure that employees act in the best interest of the employer and to safeguard the employer's reputation, codes generally require employees to avoid conflicts of interest. The focus of such rules is to prohibit employees from engaging in activities or investments that could compromise the ability to perform their duties objectively or cause others to question their fairness or integrity. Typically, conflict of interest rules address the following:

  • Having personal financial interests that could influence the employees' judgment or actions in the performance of their duties, such as having an ownership interest in a supplier to the employer;
  • Using employer property, time or resources for any private business activity;
  • Working for suppliers or competitors of the employer;
  • Doing business with vendors that are owned or operated by a relative;
  • Hiring or supervising relatives by blood or marriage, domestic partners or significant others, or participating in other employment decisions, such as performance ratings or salary increases, involving relatives, domestic partners or significant others;
  • Offering, accepting or soliciting anything of value (including gifts, entertainment and cash) to or from a customer or supplier that could be perceived as an attempt to influence business decisions (Business meals, entertainment or modest gifts that are consistent with customary business practices ordinarily are permitted; some employers establish a maximum dollar value for such gifts or entertainment and encourage reciprocal business courtesies.);
  • Offering or accepting anything that is illegal or is of such a nature that disclosure would cause embarrassment to the employer and/or the employee.

Conflict of Interest Rules and the NLRA

Blanket workplace policies requiring employees to avoid any conflict of interest between their personal interests and those of the company or to avoid taking any actions not in the best interests of the employer may be overbroad and chill employee rights because such policies may be interpreted to encompass Section 7 union organization and public demonstration related to labor disputes. An employer must be careful to confine the scope of a conflict of interest policy to legitimate business concerns. For example, rules prohibiting employees from accepting inducements, gifts or favors which raise doubts about an employee's ability to make independent business judgments may be deemed lawful. Further, rules preventing employees from engaging in competing businesses, being employed by customers, suppliers or competitors and holding ownership or financial interests in outside companies are lawful because these do not apply to employee interactions with unions and other Section 7 activities. Such rules are more likely to be found lawful if found in an employee handbook section dealing with honesty, integrity and business ethics.

Protecting Employer Assets and Confidential and Proprietary Information

Most codes address the obligations of employees to protect employer assets from loss, theft, abuse or unauthorized use. This includes the employer's physical property and equipment, finances, and intellectual property, such as confidential and proprietary information and trade secrets, among other things. Common provisions are:

  • Safeguarding employer trade secrets, copyrighted material and inventions;
  • Protecting confidential and proprietary employer information, which typically refers to nonpublic information that, if disclosed, would be detrimental to the employer or provide an unfair advantage to a third party (e.g., business plans, financial reports, market strategy and technical information about the employer);
  • Protecting confidential and proprietary third party information entrusted to the company;
  • Using employer time to perform work duties; properly recording hours worked and time off;
  • Making sure that all financial records of the employer are truthful and accurately reflect the underlying transactions;
  • Properly and accurately reporting business expenses, and supporting expense reports with appropriate documentation;
  • Requiring employees to act only within the scope of their job duties and as authorized by the employer;
  • Using employer communications equipment and systems primarily for business use (typically, limited personal use is permitted so long as it does not interfere with work); and
  • Prohibiting use of employer communications systems to send, store or access obscene, pornographic, defamatory, harassing or threatening material.

Practical Example

John and Jim are employees of Acme Pharmaceutical who have become friendly working on a product development team and socialize outside of work. One Friday night, they go out to dinner at a steak house and when the bill comes, John tells Jim not to worry about it, that he will charge it to his company credit card and expense it. John tells Jim Acme owes them for all the extra hours they put in on the product development team.

John is about to engage in expense account fraud. It is not proper to expense the bill of a social dinner to the company even though John and Jim work together on the product development team and put in long hours. If Jim agrees with John's suggestion to submit the bill as a business expense, he, too, is complicit. Such conduct violates most codes of conduct and would subject both employees to disciplinary action, including termination. Acme could also pursue criminal prosecution.

Compliance with the National Labor Relations Act. An employer should also be careful about infringing upon the right of employees under Section 7 of the NLRA to engage in protected concerted activity and to discuss wages, hours and working conditions with fellow employees and nonemployees such as union representatives. A handbook rule requiring confidentiality may be found unlawful if it specifically prohibits the disclosure of employee information regarding the terms and conditions of employment such as wages, hours, benefits and working conditions or employee contact information.

Defend Trade Secrets Act

While it is critical for employees to protect an employer's confidential and proprietary information and trade secrets, under the Defend Trade Secrets Act of 2016, an employee will be immune for the disclosure of a trade secret when reporting a suspected violation of law and/or in an anti-retaliation lawsuit. A trade secret is defined as all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if the owner thereof has taken reasonable measures to keep such information secret; the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public. Specifically, an employee cannot be held criminally or civilly liable under federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a federal, state, or local government official either directly or indirectly, or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if an employee files a retaliation lawsuit against an employer for reporting a suspected violation of law, the employee may disclose the trade secret to his or her attorney and use the trade secret information in the court proceeding, if (i) the employee files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order. See Terms of Employment: Federal.

Promoting Ethical Behavior

After the 2004 amendments to the Guidelines, many employers revised their codes to include employer values and guidance to employees on resolving ethical dilemmas. Even if conduct does not violate any law, many codes direct employees to consider the ethics of the conduct, including:

  • How the employee's conduct may affect others;
  • How the conduct may look to others;
  • Whether the employee would be embarrassed if the conduct was made public;
  • Whether the employee would feel comfortable disclosing the conduct to his or her spouse or children;
  • Whether the employee is personally uncomfortable with the conduct from an ethics or values perspective (trust your gut); and
  • When to seek help from others in the employer's organization or through the compliance or ethics hotline.

Work Rules Concerning Personal Relationships and Personal Activities

Dating and Romantic Relationships

In the modern world, as individuals spend more time at work, they are more likely to meet significant others at work as opposed to the traditional meeting places, such as church, social events, their neighborhood, or through family and friends.

Although there is nothing inherently wrong with co-workers dating, and these types of relationships do not violate any laws, including antidiscrimination statutes, employers should be aware of certain potential problems that can arise. For example:

  • One of the employees in the relationship may show favoritism towards the other employee, giving rise to preferential treatment complaints from other employees and resulting in lower employee morale.
  • The couple may engage in behavior at work that makes other employees feel uncomfortable or embarrassed.
  • If the relationship ends, the couple may engage in inappropriate workplace behavior, such as shouting and fighting.
  • Conduct that was welcome during the course of the relationship may be considered unwelcome when the relationship ends, resulting in a claim of sexual harassment.

Enacting Dating and Fraternization Policies

To alleviate these potential problems, employers should enact a policy concerning workplace dating and romances. Such policies can vary:

  • Employers may ban all interoffice dating.
  • Employers may prohibit relationships between an employee and his or her direct and indirect reports.

    Sample policy language. Any employee in a supervisory role at the [the Employer] is prohibited from dating or having a romantic or sexual relationship with any employee who reports to him or her, even if the relationship is consensual and welcome. Neither person engaged in a romantic relationship is permitted to occupy a position that has influence over the other's employment, promotion, pay, or access to confidential information regarding management or HR issues. If this policy is not followed and a transfer of one of the employees cannot be arranged, both employees may be subject to disciplinary action, up to and including termination.

Practical Example

Melinda and Jacob, who both work for Acme Manufacturing, are dating. Melinda works in the purchasing department, which Jacob manages. Other employees in the department complain that Jacob gives Melinda preferential treatment by allowing her to arrive to work late and leave early and giving her the easier assignments. To avoid these types of complaints, Melinda should be transferred to another manager.

  • Employers may require employees to notify their supervisor of the relationship.

    Sample policy language. Co-workers who consensually engage in a romantic relationship through the workplace should let their immediate supervisor know. A consensual relationship between two employees must be reported to management, even if one person does not directly supervise the other. This policy does not prohibit all romantic relationships between employees, but it does prohibit any close personal relationships that may cause potential charges of sexual harassment, distractions in the workplace or a subordinate/supervisor conflict of interest.

Love Contracts

To deal with employees who are dating, an employer may use a love contract. A love contract is a document that employers may require employees involved in a romantic relationship to sign. By signing the document, the employees agree that the romantic relationship is consensual and that neither employee will sue the employer for sexual harassment in the event the relationship ends. A love contract may outline the employer's expectations of conduct that is not appropriate for the workplace. A love contract may also require that the employees submit any workplace disputes or problems caused by the relationship to arbitration.

Regardless of the policy enacted by the employer, the best way to avoid potential problems and minimize liability is to provide sexual harassment training to its employees, including supervisors and management. See EEO - Harassment: Federal.

Further, an employee may bring a retaliation claim under antidiscrimination statutes, such as Title VII, if he or she is subject to an adverse employment action because someone closely related to the employee has engaged in protected activity. See EEO - Retaliation: Federal. While neither the courts nor the statutes have addressed who constitutes someone closely related to the employee, it is clear that a spouse or fiancé/fiancée would qualify. Additionally, it is likely that individuals involved in a romantic relationship would also qualify, as that relationship is more than a mere acquaintance.

Practical Example

Rhonda and Isaac both work for Acme Accounting and are engaged. Rhonda files a charge of discrimination with the Equal Employment Opportunity Commission alleging that her termination constitutes gender discrimination. Shortly after it learns of Rhonda's charge, Acme Accounting terminates Isaac's employment for alleged work performance issues. Isaac may have a viable claim of retaliation based on his fiancée's protected activity, even though he did not engage in any protected activity.

Nepotism and Employment of Relatives

Nepotism is favoritism or preferential treatment shown towards an employee's family members or friends, regardless of merit. Nepotism usually arises in the hiring process, but can also arise when family members are granted promotions or chosen to work on special projects. Nepotism is not illegal in the private sector. Nepotism, however, may be illegal in the public sector, as some states and cities have enacted anti-nepotism laws with regard to public employment. See State Requirements. Although the individual who benefits from nepotism may be well-qualified, because other employees may perceive nepotism as unfair, there are certain concerns in allowing nepotism in the workplace.

  • Showing favoritism towards an individual's family or friends could cause other employees to complain about preferential treatment and lower employee morale.
  • If nepotism involves hiring family and friends who are underqualified for the position, it may cause a loss in productivity.
  • Allowing nepotism in the workplace may bring family discord and unnecessary tension and, as a result, inappropriate conduct into the workplace.
  • Allowing family members to be employed by the same organization may create scheduling conflicts for the employer due to the employees' childcare and family responsibilities issues.
  • If an employer hires family members and friends of a particular race or gender to the exclusion of individuals of other races or the opposite gender, nepotism could expose the employer to a discrimination claim. See EEO - Discrimination: Federal.
  • If an employer fires an employee in order to hire a family member or friend, nepotism could lead to a wrongful termination complaint.
  • If two employees are related, there is a risk that one employee may reveal confidential employer information to the other.

If an employer allows the hiring of family and friends, the employer should enact a policy prohibiting family members from:

  • Being in the same supervisory reporting line or department;
  • Participating in employment decisions, such as promotions, salary increases, performance reviews, work assignments, etc., affecting a relative or close friend; and
  • Sharing confidential employer information with family members also employed by the organization.

By enacting this type of policy, an employer may alleviate these potential problems and the appearance of unfair or preferential treatment.

Practical Example

Stella and Michael, who are mother and son, both work for Acme Automotive Company. Although Michael is not in Stella's supervisory line, she finds herself in a meeting with other managers at which the topic of promoting Michael is raised. Stella should recuse herself and/or be prohibited from having any role in the decision due to her familial relationship with Michael. Further, Stella should also be prohibited from disclosing these confidential discussions to Michael.

Visitors in the Workplace

While having visitors in the workplace may seem harmless, there are many concerns and potential problems in permitting visitors. An employer's policy concerning visitors is dependent on the nature of the business and work site.

  • Depending on the work site, there could be many safety hazards and risks in allowing visitors in the workplace. For example, construction sites, trade shops, laboratories and warehouses are generally not conducive to visitors. See HR and Workplace Safety (OSHA Compliance): Federal.
  • Visitors may engage in conduct that places employees at risk. If left unsupervised, visitors may engage in prohibited behavior, such as altering machines, distracting workers, spilling liquids and other harmful materials, etc. See Workplace Security: Federal.
  • Employers may prohibit visitors or limit access to protect their confidential and proprietary information.
  • Visitors can disrupt the workday or cause a loss in productivity, which is why many employers choose to limit the time visitors can spend at a particular workplace.
  • Visitors also include vendors, such as FedEx, UPS, etc. Employers should limit their access to areas such as reception or the mailroom.
  • Employers also should consider requiring that visitors sign in and out, and be escorted around the work site by the employees whom they are visiting.

To best protect themselves from these potential problems, employers should develop work rules and policies concerning office visitors and post them in public places and make them a part of the employee handbook and available to all employees. The work rules concerning visitors should be enforced uniformly against all employees. For example, if an employer does not want employees to bring children to work, the employer must be cautious about making exceptions to this policy.

Employers also may want to consider restricting visitors to certain times of the day. It may be best to forbid visitors completely if there is a concern about access to confidential and proprietary information, including trade secrets.

Office Parties and Work Related Social Functions

Many employers hold office parties to celebrate the holidays, especially at the end of the year. These parties are a way to promote company unity, boost employee morale and thank employees for their hard work and dedication. However, there are potential problems that may arise, and employers should be mindful of the following concerns before allowing office parties and other work related social functions:

  • If alcohol is served, employers may be liable as social hosts for alcohol related problems, such as automobile accidents, and employers also may be liable for serving alcohol to underage employees.
  • Alcohol often alters an individual's judgment, and employees that usually behave appropriately may engage in inappropriate behavior when they have had too much to drink. This type of inappropriate conduct could lead to a sexual harassment complaint. See EEO - Harassment: Federal.
  • Certain religions may prohibit holiday celebrations. If an employer requires all employees to attend holiday parties, the employer may be subject to a religious discrimination complaint. See EEO - Discrimination: Federal.
  • Not all employees celebrate the same holidays. Employers should make sure that holiday parties include all holidays. By preferring certain holidays over others, employees may complain about preferential treatment or even religious discrimination. See EEO - Discrimination: Federal.

Celebrating Employee Birthdays

Generally, there is nothing inappropriate or illegal about celebrating employees' birthdays (or other personal milestones, such as a promotion, a wedding or a new baby) at work. Birthday celebrations may actually boost employee morale and show employees that the employer values them personally and their service. However, before allowing these celebrations, employers should consider the following:

  • Birthday celebrations may cause employees to make comments or jokes regarding the age of the employee whose birthday is being celebrated. Even if made in jest and not intended to be malicious, these comments or jokes could give rise to an age discrimination complaint if the employee is over 40 and either the employee or an employee who overheard the comment is offended. However, innocent jokes and simple teasing (unless extremely serious) will not necessarily amount to illegal conduct. See EEO - Discrimination: Federal. As such, employers should never reveal the age of an employee or the year he or she was born.
  • Employers should not force employees to celebrate birthdays, as some employees may be sensitive regarding age and may not want to celebrate a birthday or their religion may prohibit birthday celebrations. See EEO - Discrimination: Federal.
  • Employers may want to consider providing employees with special treatment for birthdays including a birthday lunch, gift cards or designating birthdays as a paid day off. The special treatment must be administered equally to all employees to avoid claims of favoritism.
  • Employers must be careful about asking employees to contribute money towards a birthday celebration for either cake or a gift, as this may put some employees in an awkward position if they do not have the desire or financial ability to contribute.
  • If the employer allows birthday celebrations, this policy must be consistently applied to all employees. Providing birthday celebrations for some employees but not all could give rise to complaints about preferential treatment or discrimination.
  • Supervisors or management may complain that birthday celebrations are disruptive to the workday or last too long, impacting employee productivity.

Employee Decorations in Office/Cubicle Areas

There are no laws requiring an employer to permit its employees to decorate their work areas or prohibiting such decorations. This decision is left to the sole discretion of the employer. Most employers allow employees to decorate their work space with personal items, such as family photos, calendars or college memorabilia. If an employer decides to allow its employees to decorate their work areas, it should enact a policy requiring the areas to be kept neat and tidy. To limit workplace distractions, employees should be prohibited from decorating their workspace with things that have sound effects or that are offensive. Employers should also make sure that the decorations do not pose a safety issue.

Employers should bear in mind that religious artifacts or symbols are personal in nature and may cause others to feel uncomfortable. For example, if an employer allows employees to put up Christmas decorations, it should allow decorations representative of other religions, such as a menorah, to avoid claims of religious discrimination. See EEO - Discrimination: Federal. Similarly, employers should make sure that the decorations are appropriate for the workplace and do not violate other policies, such as a sexual harassment policy. For example, employees should not be permitted to hang sexually suggestive or provocative pictures in their work spaces. See EEO - Harassment: Federal.

Work Rules Concerning Smoking, Alcohol and Drug Use

Smoking

Smoking regulations are state specific, and some states prohibit smoking in all public and private workplaces, while others restrict smoking to certain areas or only in certain types of workplaces. There may also be city ordinances that apply to smoking in the workplace.

See

State Requirements;

Employee Health: Federal.

When implementing work rules regarding employee smoking, employers should consider:

  • Work time versus break time. One way to limit smoking is to allow it only during break time. In this situation, the employer should make sure to designate what constitutes break time and how often an employee can take breaks. The employer should be wary of employees spending an unreasonable amount of time taking smoking breaks, as this can lower the overall productivity of the employer.
  • Designating areas for smoking. Employers may limit the areas employees can smoke to certain parts of the employer's grounds or building, or to prohibit smoking altogether. If an employer's building is located in a public area, employers should think about how customers and clients will view employees standing outside smoking.
  • Employee hygiene. Employers may want to also emphasize the importance of hand washing upon returning to work after taking smoking breaks.

Alcohol and Drug Use

There are many legal issues concerning alcohol and drug use, and employers should be aware of the relevant federal laws, like the Americans with Disabilities Act (ADA).

See

Employee Privacy: Federal;

Employee Health: Federal;

Employee Discipline: Federal.

When crafting work rules regarding alcohol and drug use by employees, there are several issues that employers should consider.

Drug-Free Workplace

The Drug-Free Workplace Act of 1988 established that any employer that receives federal grants or contracts must be drug-free or else the employer can lose federal funding. 41 U.S.C. § 701. Private organizations doing business with the federal government are also subject to these regulations. Employers that receive federal grants under the Act must take specific steps to provide a drug-free workplace, including publishing and providing to employees a policy statement describing the drug-free workplace program, outlining prohibited substances and detailing the consequences for using such substances.

See

Employee Privacy: Federal;

Employee Health: Federal.

Recognizing Substance Abuse

Supervisors should be trained to recognize substance abuse issues and how to respond properly. Employers should establish clear and consistent definitions of what type of behavior justifies drug and alcohol testing, and should corroborate any employee suspicions with other supervisors or managers.

See

Employee Privacy: Federal;

Employee Health: Federal.

Counseling and Employee Assistance Programs

Employers may want to establish a substance abuse awareness and assistance program so that employees are aware of the dangers of using illegal drugs, counseling options and rehabilitation programs. This program could serve an educational purpose to prevent employees from becoming involved in drug use, and it may also help employees recovering from drug addiction.

See

Employee Health: Federal;

Other Benefits and Services: Federal.

Drug Testing

Employers may generally perform drug and alcohol testing on applicants and employees. However, they must comply with the ADA.

An employer may drug test an applicant under the following circumstances:

  • The applicant has been given notice that testing is a condition of employment (preferably, in writing on the job application).
  • The applicant has been extended a job offer.
  • All applicants who are offered the same job are similarly tested.

See Preemployment Screening and Testing: Federal.

If employers desire to test employees after hiring, employers should publish a standardized drug and alcohol testing policy, so employees are not surprised by the testing.

See

Employee Privacy: Federal;

Employee Health: Federal.

Medical Use of Drugs

Many states now allow patients to use marijuana for medical purposes. See State Requirements. Patients usually need to provide a written doctor's authorization in order to obtain a prescription for medical marijuana, and the state may only allow marijuana use for particular diseases or disabilities. Even if the employee has a prescription, the ADA does not prohibit employers from disciplining or terminating an employee for medical marijuana use. +42 U.S.C. § 1201 et seq.

See

Disabilities (ADA): Federal;

EEO - Discrimination: Federal.

This area of law is not yet developed, however, and it has not been established whether using medical marijuana is an "illegal use of drugs" as prohibited by the ADA. An employer should thus be careful about any employment decisions made with regards to employee use of medical marijuana.

Work Rules and Policies Addressing Workplace Violence

Workplace violence can take many forms, including physical violence, harassment, intimidation and disruption of the workplace. It can affect co-workers, clients and visitors. In order to address workplace violence, employers should create a workplace violence prevention policy and program. Employers may also want to consider preemployment screening of job applicants, adopting additional security measures and creating a threat assessment team. See HR and Workplace Safety (OSHA Compliance): Federal.

Reasons for Having an Effective Workplace Violence Prevention Policy

OSHA's General Duty Clause and Requirements Concerning Workplace Violence

The Occupational Safety and Health Act was enacted in 1970 (the Act), and it created the Occupational Safety and Health Administration (OSHA). OSHA was charged with creating and enforcing many federal and state regulations regarding occupational safety and health. Section 5(a)(1) of the Act is known as the General Duty Clause, and it imposes on employers the obligation to provide employees with a safe workplace. +29 U.S.C. § 654 , 5(a)(1). The General Duty Clause is the primary source of employers' obligation to protect employees from workplace violence under federal law. However, employers should be aware that most of the obligations imposed with regard to workplace violence will arise under state law. See State Requirements.

OSHA's Inaugural Written Enforcement Directive

In September 2011, OSHA issued its inaugural written enforcement directive (the Directive) for incidents of workplace violence. The Directive is to be used by the agency's compliance officers in evaluating whether to conduct an inspection of workplace violence. It sets forth inspection protocols to be followed by OSHA's compliance officers when conducting inspections and issuing citations for violations of the General Duty Clause. The directive also provides OSHA's recommended methods of violence prevention for employers. See OSHA Directive.

Common Law Claims of Negligent Hiring/Supervising/Retention

It is important for employers to have work rules and policies addressing workplace violence because failure to do so may result in employer liability. An employer may be liable for workplace violence if a court finds that it was negligent in hiring, supervising or retaining the perpetrator.

In addition, although employers generally are not liable for violence committed by their employees outside of the workplace, an employer can be held liable if the violence committed by the employee is found to have occurred within the scope of the individual's employment.

Defining Workplace Violence

Workplace violence is defined as violent acts (including physical assaults and threats of assaults) directed toward individuals at work or on duty.

Depending on the relationship between the perpetrator and the target, OSHA sets forth the following categories of workplace violence:

  • Criminal intent refers to incidents of workplace violence committed by current or former employees who enter the workplace with the intent to commit a crime.
  • Customer/client/patient refers to violence against employees by the employer's customers, clients or patients or by any other person to whom the employer supplies goods or provides a service.
  • Co-worker is the most commonly known and refers to violence perpetrated by a current or former employee against his or her current or former co-workers.
  • Personal refers to violence perpetrated in the workplace by someone who is not employed by and does not patronize the employer, but who has a personal relationship with or is known to an employee.

Practical Example

Jeff believes his wife, June, is having an affair with one of her co-workers, Mike. As a result, Jeff assaults Mike in the parking lot of June and Mike's place of employment. Although not consistent with what most people think of when they think of workplace violence, this is an example of the personal category of workplace violence.

Victims of Workplace Violence

Anyone can be the victim of workplace violence at any time. However, certain industries are particularly susceptible to workplace violence:

  • Health care and social service settings (e.g., hospital emergency rooms, psychiatric facilities, health care clinics); and
  • Late night retail settings (e.g., 24-hour convenience stores and gas stations, establishments that engage in the late-night sale of alcohol).

In addition, there are certain factors that present an elevated risk of workplace violence in all industries. Such factors include, but are not limited to, the following:

  • Working in high crime areas;
  • Working late at night;
  • Working alone or in small numbers;
  • Working in occupations that involve the protection or exchange of money or other valuables (e.g., armored car drivers/guards, security guards, bank and check-cashing tellers); and
  • Working with unstable or violent individuals.

Minimizing Employer Liability Through Workplace Violence Prevention Programs

To reduce the hazard of workplace violence in all industries and workplaces, employers should implement certain engineering and administrative controls, as well as written workplace violence prevention programs that prevent or reduce the risk of workplace violence. See OSHA Directive.

Engineering Controls

To help reduce workplace violence, employers should implement engineering controls, such as:

  • Properly maintained alarm systems, security devices and panic buttons;
  • Metal detectors to keep weapons out of the workplace;
  • A reliable and efficient response procedure when an alarm is triggered;
  • Bright lighting both indoors and outdoors;
  • Properly maintained locks to prevent unauthorized access; and
  • Closed-circuit security cameras to monitor high traffic areas, such as entryways and exits, isolated hallways, parking lots, etc.

See OSHA Directive.

Administrative Controls

Employers should also implement various administrative controls to modify work practices and management policies to prevent or reduce the risk of workplace violence, including, but not limited to:

  • Establishing a relationship with law enforcement for the systematic reporting of incidents or threats of workplace violence;
  • Requiring employees to report all incidents to a supervisor or manager and assuring employees that there will be no retaliation;
  • Properly documenting all workplace violence incidents and assessing actions to minimize the risk of reoccurrence;
  • Designating an individual within the organization to receive complaints or inquiries regarding workplace violence;
  • Educating and training employees on how to handle physical and verbal misconduct in the workplace and on the proper procedure to report incidents of workplace violence; and
  • Training management to respond properly to complaints of workplace violence.

See OSHA Directive.

Threat Assessment Team

Employers may also want to establish a threat assessment team consisting of employees from the legal, HR, medical and security departments, who are prepared to support managers when considering the appropriate response to an act or threat of violence or intimidation that has occurred or is likely to occur. When management believes that violence or the threat of violence has occurred or is likely to occur, the threat assessment team should conduct an evaluation to determine an appropriate course of action.

Implementing an Effective Workplace Violence Prevention Policy

Written workplace violence policies should contain the following components:

  • Implementation of a zero tolerance policy toward workplace violence against or by employees, providing that employees may be subject to serious consequences, up to and including termination, for a first violation.
  • Adoption of a policy statement that clearly assigns oversight and prevention responsibilities to appropriate management and staff members.
  • Establishment of a workplace violence training program for all employees, which should include a formal written outline or lesson plan. The training program should educate employees so that they know:
    • What conduct is not acceptable;
    • What to do if they witness or are subject to workplace violence; and
    • How to protect themselves.
  • Development of protocol to be followed by management and employees in the event of a violent incident in the workplace.
  • Adoption of a policy statement that requires employees to report all incidents or threats of workplace violence, and that assures employees that all claims of workplace violence will be taken seriously and will be promptly investigated and remedied by the employer.
  • Notification to employees that the employer will take prompt disciplinary measures against employees who engage in physical and verbal misconduct, including alerting law enforcement if necessary.
  • Creation of a response team responsible for immediate care of victims of workplace violence and for the re-establishment of work areas and processes. The response team should also be responsible for meeting with and providing counseling and support to victims and co-workers following violent incidents in the workplace.
  • Establishment of an annual review process of the employer's written program, so that it may be updated and improved on a regular basis. (Of course, to the extent that it becomes obvious to the employer during the course of the year that certain changes are necessary and/or desirable to minimize the risk of workplace violence, the employer should not wait for the annual review process and should make such changes to the program as soon as possible.)

Employers may want to also consider:

  • Utilizing a policy definition of workplace violence that is broader than the definition provided in the OSHA directive (that is, "violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty"), so that the employer's internal policy prohibits any kind of intimidation or threat, as opposed to solely threats of assaults.
  • Making the policy applicable not only to employees, but also to independent contractors, consultants, visitors and anyone else on the premises.
  • Providing that individuals who commit acts of workplace violence, threaten violence or engage in intimidating conduct will be subject to:
    • A mandatory referral for a dangerousness evaluation as a condition of continued employment;
    • Serious disciplinary action, up to and including termination; and
    • Criminal prosecution, if appropriate.

Employer Response to Incidents of Workplace Violence

Because nothing can be done to completely eliminate the possibility of workplace violence, employers should be ready to take the following actions in response to an incident of workplace violence:

  • Provide prompt medical evaluation and treatment to victims;
  • Report violent incidents to law enforcement immediately, and inform victims of their legal rights to prosecute the perpetrators;
  • Promptly investigate all incidents and threats of workplace violence, and institute corrective actions as soon thereafter as is practicable and advisable;
  • Provide stress and post-traumatic counseling services (through appropriate professionals) to help victims and co-workers recover from a violent incident; and
  • Discuss the circumstances of the incident with management and staff members, and encourage employees to share their ideas for avoiding similar violent incidents in the future.

In addition, employers should ensure that management is adequately prepared to carry out the workplace violence prevention policy and take prompt disciplinary action in response to all incidents and threats of workplace violence. Employers should consult OSHA's website, as well as legal counsel, for additional guidance on steps to take in response to incidents of workplace violence, so as to minimize the risk of recurrence and the potential for legal liability.

Work Rules and Policies Regarding Horseplay

Horseplay is defined as rough or boisterous play. Although there are many reasons for employers to foster a workplace environment in which their employees want to work and there is a great deal of camaraderie and good feelings, there is a fine line between joking and good humor and altercations between employees that are more serious and could cause harm to the employer and the workplace. Employers should seek to minimize horseplay occurring in the workplace, as it presents the following risks:

  • Lower productivity-employees not focusing on what they are paid to do;
  • Damage to employer property;
  • Employee injury or even death;
  • Reduction in employee morale; and
  • Potential lawsuits against the employer, including discrimination, harassment or assault claims.

In addition, sometimes it can be difficult for an employer to differentiate between practical jokes and more serious matters. Employers should train management and supervisors in how to assess this type of behavior and respond accordingly.

Practical Example

Bill, Samantha and Donald work at Acme Manufacturing Corp. Window offices are supposed to be issued to sales associates on the basis of seniority, and this rule is generally followed. Bill and Samantha know that Donald really wants a window office, as he has recently complained to them that he should be next in line to receive one. Bill and Samantha decide to play a trick on Donald and tell him that Samantha, who has been with Acme for three fewer years than Donald, has been informed by the office manager that she is being moved into a window office within a few days. Donald becomes very angry, and during a discussion with Bill and Samantha in which Donald vents his frustration, it becomes clear to Bill and Samantha that Donald fully intends to resign from Acme, based on his anger about being passed over for the window office. Bill and Samantha, who do not want Donald to do anything he regrets, inform him that they are only playing a joke on him, and all three have a good laugh about it. This is not dangerous horseplay and is only a practical joke.

Practical Example

Darryl and Elliot work in the warehouse at Acme, Inc. Sometimes, when their supervisor is out to lunch, Darryl, Elliot and their co-workers gather together on the warehouse floor to engage in forklift racing, in which the employees take turns racing head to head on an empty area of the warehouse floor with fully loaded forklifts. Frequently, full boxes fall off of the forklifts, and sometimes the forklifts come very close to colliding. This is inappropriate horseplay that represents a risk of danger for the employer and its employees.

Moreover, it is important for employers to institute workplace rules and policies regarding horseplay, as an employer could be vicariously liable for damages. While state workers' compensation statutes may provide employees with an exclusive remedy, thus shielding employers from general tort liability for an employee's injury due to horseplay, this is not always the case. See State Requirements. A prudent employer should prohibit employees from engaging in all forms of horseplay in order to minimize the risk of liability.

Policies Addressing Horseplay and Altercations

In order to avoid liability for employee horseplay and altercations between employees that rise to a serious level and result in danger or injury, employers should consider developing a policy with the following components:

  • Setting forth that the purpose of the policy is to avoid horseplay, altercations and fighting, which is unnecessarily disruptive and may cause injury and safety risks;
  • Defining terms such as fighting, horseplay and verbal altercations;
  • Outlining permissible and prohibited conduct;
  • Warning employees not to provoke altercations;
  • Addressing off duty conduct on
    employer property and employee conduct when not on the employer's premises but visiting clients or customers;
  • Setting forth that the employer will promptly and thoroughly investigate all incidents of horseplay resulting in physical or verbal altercations, and if necessary, will discipline the employees determined to be at fault.

Employers should effectively train employees on these policies so that all employees are aware of the employer's expectations. Supervisors and managers should also be trained to know when to intervene before physical conduct escalates to dangerous violence.

Disciplining Employees for Horseplay

When dealing with employees who have engaged in horseplay in violation of employer policy, employers should hand out punishment that is reasonably proportionate to the violation. For example, an employer should consider very carefully before terminating an employee for a minor first violation, especially in an organized labor context, in which termination for such a reason might not be upheld as a legitimate for cause termination. Further, employers may want to consider mitigating factors, including length of service with the employer, previous disciplinary record and whether the employee was provoked or acted in self-defense. Contrastingly, employers may also consider aggravating circumstances in giving employees harsher penalties for altercations, including the use of a weapon or whether severe harm was inflicted. As with any policy, consistent application is critical. Therefore, if an employer does elect to consider mitigating or aggravating factors, the employer must do so each time an altercation arises in order to avoid claims of discrimination. See Involuntary Terminations: Federal.

Work Rules Concerning Bullying and Harassment

Risks of Workplace Bullying and Harassment

Workplace bullying and harassment present a wide variety of risks to employers, including but not limited to:

  • Decreased productivity;
  • Hostility;
  • Violence;
  • Employee stress;
  • Turnover or use of sick days; and
  • Potential lawsuits, regardless of whether meritorious.

Employer Liability for Workplace Bullying and Harassment

Presently there are no federal laws that prohibit workplace bullying or harassment that is not related to a protected class. However, there is a significant movement among the states to pass a Healthy Workplace Bill that will address bullying. See State Requirements.

It is well-established that an employer may be held liable for workplace bullying or harassment under both federal and state laws if the bullying or harassment is found to have occurred because of an employee's legally protected characteristic (e.g., race, gender, age, disability or sexual orientation).

See

EEO - Harassment: Federal;

EEO - Discrimination: Federal.

Minimizing Employer Liability for Bullying or Harassment

In order to minimize potential liability for bullying or harassment in the workplace, employers should:

  • Have strong, zero tolerance antidiscrimination and antiharassment policies, which should be published and communicated to all employees;
  • Have a clearly articulated complaint procedure for employees to follow if they believe they are a victim of or a witness to unlawful discrimination or harassment;
  • Identify the individuals in the organization who will address complaints and handle them in a uniform manner;
  • Consistently follow procedures and respond quickly and diligently to any complaints, taking prompt and immediate action when necessary;
  • Make sure that the discipline handed out to employees is proportionate to the offense committed; and
  • Implement an antibullying policy, which can be incorporated into the workplace violence policy, or elsewhere in the employee handbook.

Work Rules Regarding Use of Employer Equipment, Vehicles and Communication Systems

Proper Use

Employers may limit employee use of employer equipment, vehicles and communications to proper business purposes. This means that employees do not have access to the above for personal or nonwork related purposes or nonemployer related business activities. For example, an employer can limit employee use of the employer's telephones, computers and other communication devices to business related communications, and can restrict employee use of employer-provided vehicles to business related activities. +18 U.S.C. § 2510 , et seq. See Employee Privacy: Federal.

Employers should make it clear that employer systems and equipment, including telephones, computers, software, email, internet access, cell or smart phones/Blackberries and iPads, are available to employees to promote the efficient conduct of work and are to be used for business purposes and work related tasks.

Some employers may choose to allow limited personal use of communication equipment and systems, provided that such use does not interfere with work performance or violate any employer policy or law.

Distinguishing Between Working Time and Nonworking Time

Employers can also distinguish between activities performed during work time versus those performed during nonwork time. Employers have greater authority to restrict and monitor activities performed during work time than those performed during nonwork time. Employers have little control over what employees do during breaks, so long as it is not harmful to others, the employee or employer property.

Penalties and Discipline

Employers should impose penalties and a strict disciplinary policy against employees who fail to comply with these guidelines. These policies should be provided when an employee begins employment and should be clear and easy to follow. See Employee Discipline: Federal

Safety Considerations

There are also additional safety considerations when it comes to employees injuring themselves or others by the unauthorized use of employee equipment, vehicles or communication systems. Employers must have a policy to protect themselves from liability if an employee uses the employer's property to harm another. See HR and Workplace Safety (OSHA Compliance): Federal.

Employer Right to Monitor Use of Employer Property

Equipment and Communications Systems

Employers have the right to monitor employee use of employer-provided equipment and communication systems, which are considered to be the employer's property. Employers should implement policies that:

  • All communication equipment and systems of any kind are employer property;
  • All documents created, transmitted, received or stored utilizing these systems are the sole property of the employer;
  • The employer reserves the right to monitor, access, retrieve, review, disclose or delete any communications on its systems at any time and for any reason, without notice; and
  • Expressly advise employees that they should have no expectation of privacy in the use of any of the employer's communication equipment and systems.

See Employee Privacy: Federal.

Employer-Provided Vehicles

Employers may monitor and track their vehicles to ensure that employees are not using the vehicles for unauthorized reasons, to schedule regular maintenance or to ensure that employees are not violating the law when using the vehicles. See Employee Privacy: Federal.

Before engaging in any monitoring activity, employers should let employees know that their actions may be monitored. Employers must respect employee privacy rights even when trying to protect employer property.

Privacy and Security Considerations

Employers must notify employees that the employer may monitor employee use of equipment, vehicles and communication systems. The employer should also be clear about the reasons behind the monitoring and describe why it is justified. Any employee monitoring should be carried out uniformly to avoid claims of discrimination. See Employee Privacy: Federal.

Bring Your Own Device (BYOD)

A recent, potentially problematic trend in the workplace is referred to as Bring Your Own Device (BYOD). BYOD is the practice of allowing workers to bring in their own devices (laptops, tablets, blackberries, etc.) to use at work and to access employer intranets and information instead of providing the employee with the employer's technology.

Allowing BYOD has potential benefits as it is more cost efficient, it increases company morale (because employees are able to pick and choose their own technology) and there is a chance that employees will take better care of their own technology (especially since they would be in charge of paying for repairs and replacements) than their employers' technology.

However, there are some potential drawbacks to BYOD as permitting employees to bring their own devices greatly increases the risk of a security breach and that the employer's confidential and proprietary information will be compromised.

To help avoid problems through the use of BYOD, there are many things employers should consider doing:

  • Implement a BYOD policy that addresses what is expected of employees who are using their own devices to access confidential materials. The policy should also address a variety of issues such as data security, employee safety, monitoring, use of the device for business purposes during nonworking hours and employer reimbursement.
  • Widely distribute the policy to all employees by placing it in the employee handbook and providing training on it to assure safe, responsible and acceptable use by all employees and supervisors;
  • Create detailed requirements for the devices (such as requiring them to have passwords, certain firewalls or a specific technologically advanced software);
  • Create detailed requirements for the employees regarding what websites and applications can be accessed from the device;
  • Perform periodic audits to ensure compliance; and
  • Have means to ensure removal of information at the end of employment.

Use of Employer Communications Systems and the NLRA

An employer should be aware that under Section 7 of the NLRA, employees may be entitled to use the employer's property such as computer, email, internet and social media in the course of protected concerted activity. A work rule prohibiting employees from engaging in protected concerted activity or one that can be reasonably construed as attempting to prohibit protected concerted activity may be found unlawful.

As a result, it is critical for an employer to determine its position on employees' personal use of computers, email, the internet and social media on the employer's equipment and network.

Pursuant to the National Labor Relations Board's (NLRB's) decision in Purple Communications, Inc. and Communications Workers of America, AFL-CIO, +2014 NLRB LEXIS 952 (N.L.R.B. Dec. 11, 2014), an employer may not prohibit employees from using their work email system for non-business purposes, including union organizing and NLRA protected communications, during nonworking time. Employees who have been given access to the employer's email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time.

However, employers are not required to provide email access to employees and may implement a total ban on nonwork use of email, including NLRA-protected communications, during nonworking time by demonstrating that "special circumstances" make the ban necessary to maintain production or discipline. Whether special circumstances exist depends on the "nature of the employer's business." In the event that an employer cannot justify a total ban of nonwork email during nonworking time, the employer may apply uniform and consistently enforced control over its email system to the extent that such controls are necessary to maintain production and discipline.

Further, while an employer may not monitor employee computers, emails, internet use and social media for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability and employer may not engage in monitoring or surveillance for any unlawful purpose including monitoring, or giving the impression of monitoring, employee union activity and protected concerted activity under Section 7 of the NLRA.

Prohibited Conduct

Sleeping and Loafing

Sleeping or loafing on the job should not be permitted because it:

  • Affects productivity;
  • Wastes resources; and
  • Is a safety risk.

The employer's policies should be clearly explained to all employees, and loafing in particular should be defined so that employees know the employer's expectations. At any sign of an employee napping or wasting time at work, the employee should be disciplined. If the employer allows one employee to sleep or loaf on the job, this may quickly develop into a much larger problem, leading to overall decreased employee productivity and morale. Allowing this type of behavior will give clients or customers the impression that employees do not take their job seriously. See Employee Discipline: Federal.

Incompetence and Negligence

Employers also should emphasize to all employees that incompetence or negligence will not be tolerated. This type of behavior could result in damage to the employer and opens the employer to potential liability. The level of an employee's competence may not be immediately known to the employer, but upon realizing that the employee cannot perform basic tasks required of the job, the employer should counsel the employee and work on strategies to improve performance. Training sessions can help with competence and negligence issues, but the employer should not allow an incompetent or negligent employee to continue working for too long without taking some affirmative measures. The employer also may consider transferring or relocating the employee. However, if an employee cannot or will not improve, the employer may determine that it is not worth retaining the employee.

See

Employee Discipline: Federal;

Involuntary Terminations: Federal.

Insubordination, Discourteous and Disrespectful Conduct

Employers should create policies prohibiting insubordination, as well as develop guidelines to define what is considered insubordination, discourteous and disrespectful conduct. Insubordination can be defined as either the unwillingness to carry out a request or some other form of disrespectful behavior toward a manager or supervisor. Codes of conduct can also be used to outline the type of behavior that will and will not be allowed. See Employee Discipline: Federal.

Insubordination, discourtesy and disrespect have a significant effect on employee morale and productivity. Employers that face insubordination should handle the situation using normal disciplinary procedures, including written and verbal warnings, unless the insubordination is so extreme as to warrant termination.

Employees may be excused from a charge of insubordination if:

  • The employee reasonably believed that the employer's request would put the employee or someone else in imminent danger;
  • The employee reasonably believed he or she was asked to do something immoral or illegal; or
  • The employee was asked to do something the employee was incapable of carrying out.

Further, in implementing any policy regarding insubordination and/or respectful conduct, employers should remember that employees have a right to protest and criticize management and their employer's policies as well as wages, hours and working conditions. A handbook rule prohibiting employees from criticizing or protesting their employer's labor policies or treatment of their employees or from prohibiting employees from engaging in disrespectful, negative, inappropriate or rude conduct towards the employer or management or prohibiting an employee from criticizing an employer's labor policies and treatment of employees in a public forum violates the NLRA because it infringes upon the right to engage in protected activity.

However, a rule requiring employees to be respectful and professional towards co-workers, clients or competitors and refrain from being rude and unprofessional will be lawful because employers have a legitimate business interest in having employees act courteously and professionally in dealings with third parties and an interest in having employees work together in an atmosphere of civility. Likewise, rules prohibiting insubordination, threatening and intimidating behavior do not violate Section 7 rights.

Furthermore, work rules requiring employees to refrain from violent, discriminatory, abusive, offensive, harassing, threatening or intimidating conduct or prohibiting racial slurs, derogatory comments or insults would be viewed as lawful because it prohibits unlawful harassment and discrimination and not protected criticisms of the employer.

Fraud and Falsifying Documents

Some instances of fraud to look out for include:

  • Falsifying resumes and other employment records;
  • Providing inaccurate information on time cards; and
  • An employee lying about his or her whereabouts.

Employers should develop a fraud policy that instructs all employees to immediately report incidents or suspicions of fraud and that states that the employer will promptly investigate all instances of suspected fraud and will maintain the necessary procedures for preventing fraud.

See

Employee Discipline: Federal;

Workplace Security: Federal.

Theft

Employee theft is a common problem faced by employers. There are different categories of theft, including theft of:

  • An employee's personal belongings;
  • Intellectual property; and
  • Equipment and supplies.

Employers should handle each theft situation by conducting an internal investigation and then, if warranted, contacting external law enforcement. Protections against theft that employers can use include:

  • Internal controls which include clear policies prohibiting theft, describing the procedure to be taken when a theft has occurred, calling for the suspension of an employee accused of theft pending an investigation and warning that employees who steal may be terminated. This should also include policies and procedures for safeguarding employer finances and property, e.g., requiring two managers to sign checks.
  • Investigatory procedures that must be followed by individuals charged with investigating theft. Depending on the magnitude of the theft, it may be necessary to involve external legal counsel and law enforcement.
  • Employee discipline which usually includes immediate suspension pending an investigation.

See

Employee Discipline: Federal;

Workplace Security: Federal.

Gambling

Employers should make clear that employees are prohibited from engaging in illegal gambling at work.

Employees may choose to allow some forms of gambling activities, such as office pools during the Super Bowl or the Final Four. Even these gambling pools should be monitored so as to prevent employees from wasting too much working time. Gambling can affect employee productivity and morale if employees spend working time engaged in gambling. Employees with a gambling problem may also be distracted at work by the desire to gamble or the need to win back money that was lost. Employers may want to set guidelines that betting can only be conducted during break times or before or after work. See Employee Discipline: Federal.

Practical Example

Harry's employer allows Harry and his buddies at work to hold an office pool for the Super Bowl each January, so long as every employee fills out their entry information at home and no work time is spent watching games or comparing results. Harry's employer does not, however, allow Harry and his buddies to hold poker tournaments at the office.

Work Rules Regarding Off Duty Conduct

Types of Off Duty Conduct

Arrest or Conviction of Crime

In most states, employers should not use employee information about off duty illegal conduct that results in an arrest or conviction, unless that off duty conduct has an actual impact on the employee's work or the employer's business interest. See State Requirements; Preemployment Screening and Testing: Federal.

There is a delicate line that the employer must balance between having responsible employees whom the employer can trust and preserving employee privacy rights. The Equal Employment Opportunity Commission (EEOC) has held that the refusal to hire applicants and the termination of employees who have been arrested may violate antidiscrimination laws because of a disparate impact on minorities. See EEO - Discrimination: Federal.

Drug and Alcohol Use

Generally, employers cannot regulate employee drug and alcohol use that takes place during nonworking hours, if there is no clear effect on the employee's job performance. However, if the employer notices that the drug or alcohol use has any effect on the employee's job duties, the employer may take action against the employee. It is important that the employer consult with local counsel because these laws may vary significantly, depending upon the state in which the employer operates.

See

Employee Privacy: Federal;

Employee Discipline: Federal;

Employee Health: Federal;

HR and Workplace Safety (OSHA Compliance): Federal;

State Requirements.

Moonlighting and Outside Employment

Working more than one job is lawful, but employers can limit after-hours work that conflicts with the employer's business. For example, working for a competitor can provide grounds for discipline or termination, as there is an increased risk that confidential information will be exchanged.

To protect itself from any legal attacks by employees on this issue, the employer should make sure that all employees are aware of this policy before beginning employment.

Additionally, an employer should make sure that any policy regarding outside employment complies with the NLRA. Under Section 7, employees are permitted to engage in "salting", a labor tactic in which an individual who works for the union obtains a job with an employer with the intent of organizing the employer's workforce. An outside employment policy will generally comply with the requirements of the NLRA unless the policy prevents, prohibits or was adopted in response to employee union activity such as salting or was applied to restrain workers from engaging in other protected concerted activities.

 

Offensive Behavior

Employers are permitted to terminate employees based on off duty immoral conduct, including sexual, violent, or morally repugnant behavior. Employers generally have the ability to take action against employees for immoral or offensive behavior during nonworking hours if there is a clear connection between the employee's job and the offensive behavior. Public employees, like police officers or government officials, may have a higher duty to conduct themselves properly outside of work. See Employee Discipline: Federal.

For example, it was held that the right to privacy did not prevent a state from terminating a police officer who engaged in a polygamous marriage. See Potter v. Murray City, +760 F.2d 1065 (10th Cir. 1985).

Practical Example

If Elizabeth, a kindergarten teacher, engages in well-known sexual activity outside of work, her employer has the right to fire her.

State and local laws can vary a great deal on this issue, so if the employer has any questions about this, the employer should consult with a local employment lawyer. See State Requirements.

Discipline

Employers should discipline employees if their off duty behavior creates a legitimate business concern and there is a clear relationship to the employer's interest. Reasons to discipline an employee for off duty activity include:

  • Violation of employer policy;
  • Negative impact on worker morale or performance; and
  • Damage to the employer's reputation with customers or the general public by having its name associated with negative behavior.

Generally, however, the employer should focus on employees' work and job related behavior rather than their off duty conduct. See Employee Discipline: Federal.

Restrictions on Discipline

Certain laws may limit the ability to discipline employees for off duty conduct.

  • Antidiscrimination laws. Many federal laws specifically protect certain classes, and employers may be sued for discrimination under statutes such as the Americans with Disabilities Act, the Age Discrimination in Employment Act or Title VII of the Civil Rights Act. See EEO - Discrimination: Federal.
  • Constitutional protections. Employees are further protected by certain specific constitutional protections, such as freedom of religion, expression and association under the First Amendment. Employers should be careful not to infringe on these protected rights. Private employees do not have as many First Amendment rights as public employees, however, as employers have the right to regulate communications in the private workplace. See Employee Communications: Federal.
  • National Labor Relations Act.  Employers should be particularly careful and refrain from disciplining employees who engage in protect concerted activity or collective action to improve their wages, hours and working conditions as this activity is protected under Section 7 of the National Labor Relations Act. If employers discipline employees for such conduct, an employer may face an unfair labor practice.
  • State laws. Many state laws prohibit employers from making employment decisions based on an employee's past arrests or convictions and prohibit discrimination based on characteristics not covered by federal law. Employers should be familiar with state laws on these topics.

See

State Requirements;

Overview - Avoiding Legal Landmines in Recruiting and Hiring: Federal.

Work Rules Regulating Employee Dress, Grooming and Personal Appearance

Appearance Expectations and Standards

Employers have the ability to impose regulations and guidelines regarding employee dress, grooming, personal appearance and hygiene. Depending on whether employees deal extensively with the public or not, the employer should formulate basic rules on employee appearance and dress codes. Issues to consider when deciding on the dress code should include the following:

  • Job specific needs. Different departments and different jobs require different dress code guidelines, depending on the nature of the work performed by employees.
  • Safety and health considerations. Any dress code regulations should take into account safety considerations and standards. For example, if an employee is working with dangerous machinery or equipment at a factory or on an assembly line, loose fitting clothing or other items, such as jewelry and accessories, that might get caught in equipment should be prohibited.
  • Business needs. There should be a direct correlation between dress code policies and business needs. This will make employees more likely to follow the policy since it is clear why such policies are necessary. The employer is also less likely to face discrimination challenges with this type of policy. See EEO - Discrimination: Federal.
  • Employer's public and professional image. Dress code policies should reflect the professional or public image that the employer seeks to present, which will depend on the employer's customers and industry.

Types of Dress Code Policies

Employers have the right to establish and enforce a dress code policy as a condition of employment so long as all of the employees are informed of the existence of this policy upon beginning employment. There are different types of dress code policies that employers may choose to implement, including:

  • Business and formal attire dress code is most appropriate for a professional atmosphere in which employees will have significant interaction with customers and clients. For example, many law firms adopt this type of dress code.
  • Business casual dress code is the best option for employers that want employees to dress comfortably at work while projecting a professional image to clients. This can sometimes be harder to implement than a more formal policy as employers must set clear guidelines on what clothing is and is not permissible under the policy.
  • Casual dress code may be an inexpensive way to boost morale in that employees can express their individuality and wear what they want to wear to work. However, it is often difficult for management and employees to interpret this type of dress code. If the employer chooses to have a casual dress code, the employer should develop specific guidelines that are clearly communicated to all employees.
  • Summer dress code may be a particularly good idea for employers in places where it is so hot that wearing a suit to work in the summer is extremely uncomfortable for employees.
  • Casual Friday dress code can be a good compromise for employers that want employees to maintain a professional image at work, but also understand the desire to dress down. One day of casual clothing a week may boost employee morale while avoiding changing the overall policy.
  • Grooming/hair/facial hair policy may be important for the employer's public image. Even though employers may have different policies for men and women (e.g., facial hair, makeup), such policies must be applied uniformly and impose an equal burden on both sexes. As these types of policies can be difficult to administer, the employer should set out clear guidelines for employees to follow. See EEO - Discrimination: Federal.
  • Fragrance/perfume policy may be adopted to prevent adverse reactions, allergies or symptoms in employees. Under the ADA, employers may be forced to reasonably accommodate employees with scent allergies. +42 U.S.C. § 1201 et seq. See Disabilities (ADA): Federal.
  • Hygiene and cleanliness policies address hygiene issues in the workplace. Employers that create these policies must make sure that the policies are explicit and that confrontations with employees are handled in a tactful manner so that employees do not feel singled out or discriminated against by the employer.
  • Jewelry policies are another type of dress code policy and should be communicated to all employees upon joining the employer, so that there is no confusion. Jewelry policies should also be implemented in a consistent manner. Depending on the type of employment and the work of the individual employee, there may be safety reasons for not permitting employees to wear dangling jewelry at work, especially if the employees work with, or in the vicinity of, heavy machinery or hazardous substances.
  • Tattoo policies can be adopted if employers wish to have no visible tattoos on employees, but this also should be communicated to job applicants before beginning employment. The employer cannot permit some types of tattoos and not others, or this may be perceived as discriminatory.

Uniformed Workforce

Employers might want to require a uniformed workforce in order to present a certain image to the public, or so that all employees are treated in the same manner and feel camaraderie with colleagues. If the employer requires uniforms, the employer must make sure that those uniforms are affordable and practical and that they are made available in all sizes. The benefits that come from having all employees dressed uniformly will be lost if employees feel uncomfortable in what they are wearing.

Strategies for Dealing With Dress Code Violations

It is important for employees to have strategies in place so supervisors and managers feel comfortable confronting an inappropriately dressed or groomed employee or an employee with a hygiene problem. There are many reasons why an individual may violate the dress code, and each one of those reasons may require a different response by the employer. For example, if poverty prevents an employee from having clean and fresh clothes to wear to work every morning, that employee should be treated differently than an employee who is lazy and unkempt and does not have good hygiene habits. The steps that the employer may want to take are:

  • Communicating the policy to the employee;
  • Setting up a meeting with the employee to discuss the violation;
  • Warning the employee of the consequences of violating the policy;
  • Working together to come up with a solution; and
  • Disciplining the employee if he or she continues to violate the policy.

Employers must be careful to account for and balance the employee's right to self-expression against the employer's ability to maintain a professional workplace.

Employer Considerations

Employees may bring discrimination claims based on dress or grooming policies if the policy has an adverse impact on a protected class. To avoid any issues with employees who may not be able to comply with a dress code, employers should:

  • Provide notice of and communicate the policy to all employees;
  • Require employee acknowledgement of the policy;
  • Establish a procedure for employees to request exceptions from the dress code for legitimate reasons; and
  • Consistently apply the policy to all employees.

Issues related to the enforcement of dress codes commonly arise from the following areas:

Gender

Employers can have different policies for men and women so long as the policies do not purposefully discriminate against either sex based on gender. Policies should also follow traditional social norms and incorporate generally accepted attire. For example, employers can require men, but not women, to wear ties to work. See EEO - Discrimination: Federal.

Religion

Both federal and state laws require employees to accommodate religious beliefs and practices unless doing so would result in an undue hardship for the employer. For example, a dress code policy may prohibit headwear, such as baseball caps, for image reasons, but exceptions should be made for employees whose religious beliefs require the wearing of headwear. If the policy prohibits headwear because employees need to wear hard hats for safety reasons, then the employer must explore whether religious headwear can be worn with a hard hat. See EEO - Discrimination: Federal.

Disability

Employers are required by the ADA to reasonably accommodate employees who are unable to follow an employer's dress code because of a disability.

See

EEO - Discrimination: Federal;

Disabilities (ADA): Federal.

To ensure that the employee is not being taken advantage of, the employer should publish the procedures that the employee must go through to get permission not to follow the employer's dress code policy.

Practical Example

Jamie's employer has a dress code that prohibits employees from wearing sneakers to work. However, due to a medical condition, Jamie has crutches and needs to wear sneakers because they are more comfortable than shoes. Jamie's employer cannot prevent Jamie from wearing sneakers to work despite the dress code for all employees.

Sexual Orientation

Employers also should ensure that their dress code policy does not discriminate against individuals based upon sexual orientation. This can be particularly challenging for employers when dealing with transgender individuals. It is a best practice for employers to work with the employee to see what the individual feels comfortable doing and to make exceptions to the dress code policy on a case by case basis. See EEO - Discrimination: Federal.

Dress Codes and the NLRA

In implementing any dress code policy, employers should remember that under Section 7 of the NLRA employees in both union and nonunion workplaces have a right to engage in protected concerted activity and collective action to improve their wages, hours and working conditions.  Wearing union insignia or displaying a union logo on clothing may be viewed as a form of protected concerted activity.  Therefore, in developing, implementing and enforcing any dress code policy an employer should be careful to comply with the NLRA and make sure that such a dress code is narrowly drafted and does not interfere with employee Section 7 rights.

Although an employer  may seek to promote a professional image and have a legitimate safety and business reason for prohibiting employees from confrontational, slanderous, insulting or provocative clothing, an employer should be careful that any dress code policy is not overbroad.  An employer may not prohibit employees from wearing any clothing with words or messages that are derogatory toward the employer as this could be considered a form of protected concerted activity and protest regarding employee wages, hours and working conditions.

Further, an employer should also remember that a dress code for union employees is a mandatory subject of bargaining. Accordingly, an employer is required to bargain with any unions regarding a dress code before unilaterally imposing one.

Work Rules Regarding Employee Work Schedules and Shifts

When creating work rules and policies regarding employee work schedules and shifts, employers should consider the following issues.

Work Hours and Workweek

All employees who are not exempt under the Fair Labor Standards Act (FLSA) should be paid at least minimum wage for all hours worked. +29 U.S.C. § 201 et seq.

See

Hours Worked: Federal;

Minimum Wage: Federal.

Hours worked includes training time, cleaning time, waiting time or any time when the employee must be on the employer's premises or engaged in duties relating to his or her work. Hours worked does not include paid holidays, vacation days, sick days or any other paid time off. If the employee is free to completely leave the employer's premises and does not perform work related duties, that time is not considered hours worked. Employers should be aware of the fact that special rules apply to certain occupations, such as bus and truck drivers, personal care attendants and emergency personnel, and should know the exceptions specific to their industry.

Employers should also check the laws in their state for further restrictions. SeeState Requirements.

Regular Work Hours Versus On Call Hours

Generally, employees who are required to remain on the employer's premises or so close to the premises that their time cannot be used for personal purposes whenon call must be compensated for that time even if they do not perform work during that time. Employees who are allowed to leave the premises and carry a beeper or cell phone, and who are generally free to engage in personal activities while on call, do not have to be compensated for that time. If an employee is required to monitor email or voice mail or respond to messages during nonwork time and that employee is not exempt under the FLSA, that employee may have to be compensated for hours worked. See Hours Worked: Federal.

Break Times and Meal Times

Breaks are not required by federal law, but when employers offer short breaks, they are considered compensable work hours and should be calculated as hours worked in overtime determinations. See Kohlheim v. Glynn County, GA, +915 F.2d 1473 (11th Cir. 1990). If the breaks are unauthorized, however, they are not compensable. An employee also cannot obtain additional compensation if the employee does not get breaks, or accumulate unused break time towards a day off. Some states require employers to provide employees with breaks, depending on the number of hours the employee works in a given day. See State Requirements; Hours Worked: Federal.

Breaks for meals, usually periods that last longer than 30 minutes, are not considered working time and do not have to be paid. The employer may have to compensate the employee, however, if the employee performs work duties while eating.

Regular Payday

Employers generally must make employees aware of how often and on what days employees will be paid. States have different requirements for how often employees must be paid. For example, some states only require that employees be paid monthly, while other states may require weekly payments for certain types of employees. See State Requirements; Employee Compensation.

Collective bargaining agreements may set forth when paydays will occur. See Collective Bargaining Process: Federal.

Work Rules Regarding Attendance, Tardiness and Timekeeping

Laws Affecting Absenteeism and Attendance

Employers should be aware of the various laws that limit the ability to discipline employees for absenteeism.

Family and Medical Leave Act (FMLA)

The FMLA governs when employees qualify for family and medical leave, including leave benefits for employees with family members in the armed services. +29 U.S.C. § 2601 et seq. The FMLA applies to any private sector employer with 50 or more employees working within 75 miles of a job site, as well as to all public agencies. Under the FMLA, employees can take up to 12 weeks of unpaid, job-protected leave in a 12-month period for certain family and medical reasons, which include:

  • Birth, adoption or placement in foster care of a child;
  • Serious health condition of an employee's immediate family member; or
  • Employee's own serious health condition.

See FMLA: Federal.

Some states have their own laws regarding family and medical leave. See State Requirements.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA allows employees who leave their jobs to undertake military service and other deployed emergency workers to return to their jobs as soon as their service is over. 38 U.S.C. § 4301-4335.

See

USERRA: Federal;

EEO - Discrimination: Federal.

Americans with Disabilities Act (ADA)

The ADA prohibits discrimination against workers or job applicants with disabilities, and it applies to all private employers with 15 or more employees.

Under the ADA, granting extended leave to an employee with a disability is considered a reasonable accommodation under certain circumstances. Even if the employee has used up his or her sick leave, vacation leave and FMLA leave, an employer may still need to grant additional leave to the employee. +42 USC § 1201 et seq.

See

Disabilities (ADA): Federal;

EEO - Discrimination: Federal.

Title VII of the Civil Rights Act of 1964

Title VII may require that employers make reasonable accommodations in response to employee requests for time off for religious reasons or family responsibility reasons. The employer must make every effort to comply with reasonable requests. +42 U.S.C. § 2000e et seq. See EEO - Discrimination: Federal.

Practical Example

Sarah, an employee at a movie theater, asks her boss to avoid scheduling her for any Friday night or Saturday shifts so that she may observe the Jewish Sabbath. It is not a reasonable accommodation for Sarah's employer to only give her Fridays off or every other Saturday off because this does not solve the religious issue that Sarah faces. The only way that the movie theater can deny Sarah's accommodation request is if providing it would produce an undue hardship for the theater.

State Workers' Compensation Statutes

Aside from the federal laws, nearly all states have workers' compensation statutes that cover on the job illnesses and injuries. These laws protect employees who have to take time off from work to recover. See State Requirements; Workers' Compensation: Federal.

Jury Duty and Court Appearances

Jury duty or mandatory court appearances are other frequent causes of employee absences. Many states have now passed laws protecting employees who serve on juries, so employers should be familiar with the laws. See State Requirements. Under the Federal Jury System Improvement Act, employers cannot fire, threaten to fire, intimidate or coerce an employee because of jury duty service. +28 U.S.C. § 1875 . See Jury Duty: Federal.

Under the FLSA, employers must pay full salaries to exempt employees who are absent from work for one week or less, although if the absence is for jury service, jury fees may be deducted. Employers are not required to pay nonexempt employees or to pay exempt employees absent for more than one week, and the same requirements apply to employees who must appear as a witness or defendant in a case. State laws, however, may require this. See State Requirements.

Arrests and Imprisonment

Many states have statutes prohibiting discrimination on the basis of criminal convictions or arrests, unless such criminal convictions or arrests are job related. If the arrest or imprisonment leads to absenteeism, however, termination may be justified under an attendance policy. Employers may want to develop a policy that any absences due to arrest or imprisonment will be treated as unexcused, and that an employee with a certain number of unexcused absences may be suspended or terminated. See State Requirements.

Causes of Absenteeism

Some of the most common causes of absenteeism are:

  • Poor morale;
  • Unsatisfactory leave benefits;
  • Inadequate training;
  • Unrealistic job expectations; and
  • Personal issues, such as sickness, substance abuse issues and childcare or family responsibility issues.

Sickness

Most employers are not required to provide workers with paid sick leave, although many choose to do so. Employers may also distinguish between sick leave and injury. Beyond the federal statutes discussed above that require employers to grant leaves of absence to employees who are sick or disabled, state laws also impose some obligations on employers. For example, some states have passed, or are in the process of passing, laws governing the amount of sick days that an employer must permit. See State Requirements; Disabilities (ADA): Federal.

Employers should provide employees with a written or posted description of employment practices and policies regarding sick leave, personal days and time off. Employers may choose to provide paid sick days based on years of service or position level, or award the same number of sick days to all employees, or offer a paid time off policy, in which sick, vacation and personal days are calculated together.

The employer should decide which option is best suited for its business needs, communicate the policy to all employees and apply the policy consistently.

Occurrences Versus Days

Employers may want to develop a clearly written policy under which employees are only permitted to call out sick a certain number of times without regard to the number of days used. For example, an employee who is out sick Monday through Wednesday has one occurrence, while an employee who calls out sick three Fridays in a row has three occurrences, even though they are absent the same number of days.

Presenteeism

Presenteeism is a term used to describe employees who show up to work when sick and do not work at full capacity. Presenteeism may not only cause other employees to become sick, but could also lead other employees to believe that employees are required to come to work even when ill. Employers should encourage sick employees to leave work when ill and to stay at home and recover.

Lateness

The first way to avoid lateness is to develop and communicate a policy requiring employees to arrive to work on time and outlining the consequences and disciplinary measures to be taken if an employee is tardy. A written policy avoids confusion and also provides a step-by-step guide for supervisors to discipline tardy employees. Employers should ensure that any employee tardiness is documented to create a record if the employer takes an adverse employment action based on employee tardiness. It is also important to be consistent to avoid claims of favoritism or discrimination.

Employer Policies

Employers use different policies when determining who should get paid for sick days, vacation days, holidays and personal leave, and how much time employees get. See Sickness.

  • Paid time off (PTO). PTO describes a set amount of paid days that the employer allows each employee to take. Sometimes the employer's plan offers a set number of days for each form of PTO, whether it is sick leave, holidays, or vacation days. Other employers provide a set number of days that the employee can use with discretion. Employers may choose to award time off based on the number of years the employee has worked for the employer and the level of the employee, or award a set amount to all employees.
  • Paid leaves vs. unpaid leaves. Employers should develop a cohesive policy on this including how, when and to whom employees should ask for paid and unpaid leave and implement it accordingly.

Monitoring Employee Attendance and Timekeeping

Monitoring the keeping of time and attendance can be a difficult task. There are many systems, and employers should try to find the one that works the best for their needs. It is very important that employers ensure employees' time is tracked accurately, especially nonexempt employees, so that employers can comply with federal and state overtime laws.

Employers may choose from a variety of methods to track employee time at work including the following:

  • Electronic timekeeping. Employees use a badge reader, hand scanner or other electronic device to keep track of when they clock in and clock out of work. Employees may also be required to input their time record into a computer program at the end of each day or each period and subsequently approve and verify it.
  • Time clock. Employees put time cards into a clock, which records the time the employees clock in and clock out of work.
  • Time sheet. Employees record time manually, and the employer relies upon employees to record these times accurately.

Attendance Policies

Employers should consider implementing an attendance policy in order to encourage good attendance and track employee absences. The policy should also indicate that discipline may be imposed for excessive absenteeism. For example, employers may want to consider implementing a point system to calculate the number of absences to which an employee is entitled. Usually, each absence is one point, showing up tardy is half a point and not showing up at all is two points. Employers can then use a progressive disciplinary system depending on the amount of points that an employee accumulates, beginning with a verbal warning, then a written warning, suspension and finally, termination.

No matter what type of policy is chosen, employers should be careful not to violate the ADA, FMLA or other relevant laws by disciplining employees whose absences are protected. Employers should try to avoid no-fault attendance policies which charge an absence against an employee regardless of the reason for the absence as such policies fail to recognize absences under the ADA, FMLA or related federal, state or local laws. Employers should also avoid language in any attendance policies that mandate termination of an employee if the employee does not return to work within a specific period of time.

Communication of Policy to All Employees

After developing an attendance policy that the employer is comfortable with, employers should then communicate this policy to all employees so that employees understand their attendance obligations and the consequences for excessive absenteeism. Employers should also make sure that such policies are applied fairly and consistently. Employers should also consider the following:

  • Publishing the policy in the employee handbook. By memorializing the policy in the handbook, and having all employees sign a written acknowledgement, new hires will understand attendance expectations immediately upon beginning work.
  • Collective bargaining agreements. A collective bargaining agreement may affect the attendance policies of unionized employees if scheduling is addressed in the agreement. See Collective Bargaining Process: Federal.
  • Notification procedures. Procedures to notify the employer of an absence also should be clear and expressed to the employees.

Dealing With Habitually Absent or Habitually Late Employees

Employers may have to deal with employees who are constantly absent or tardy and provide frequent excuses for such behavior.

When handling an employee who is habitually late or absent, employers should:

  • Meet with the employee. Usually, the first best response is to confront the employee immediately. Without asking legally impermissible questions or making assumptions, the employer should try to find out the cause for the pattern of absences. The employer should also make sure that the employee knows the employer's attendance expectations and policies.
  • Provide a warning. The next step is to give the employee some warning. Usually, employers begin with a verbal warning and then progress to a written warning.
  • Discipline. It is best to develop a discipline policy that is communicated to all employees so as to avoid confusion and surprise. Employers may want to discipline in a progressive manner, beginning with suspension for a couple of days and ending with termination. See Employee Discipline: Federal.
  • Take into account the following factors:
    • Length of service and prior attendance record;
    • Authorized absences versus unauthorized absences;
    • Efforts to improve and prospects of improving;
    • Extent to which absences exceed what is permissible under the employer's attendance policy; and
    • Effect on workplace efficiency and morale.

Recognizing Protected Absences for Disabilities or Other Conditions

While employers should generally seek to apply attendance policies to all employees in a uniform manner, employers should be careful about employee absences covered by the ADA, the FMLA, and other similar federal, state and local laws. This is especially true in light of the recent developments and 2008 Amendments to the ADA which expands the definition of disability significantly. Employers should keep in mind the following:

  • In most cases, such absences cannot be used as the basis for disciplinary action, a negative performance review or compensation decisions, and the employer should indicate a willingness to consider excusing such absences.
  • If an employee misses work or must be out of work for a prolonged period of time as a result of a medical illness or condition, an employer may be able request documentation. The employer should then make an individualized assessment and evaluate whether the absence is caused by a condition that is protected under the law. Employers should be sure to keep any such documents in a separate file and confidential.
  • Employers may want to consider providing training to supervisors and managers to report medical reasons serving as the basis for an employee's absence.

Employers are required to engage in the interactive process and may need to provide a reasonable accommodation to employees willing to return to work after an absence or illness covered by the ADA, FMLA or other applicable laws. Thus, employers should avoid policies which require an employee to be free of all medical restrictions and able to work at full capacity before returning to work.

Attendance Incentive Programs

In addition to policies on disciplining frequently absent employees, employers may also want to consider implementing an attendance incentive program. An attendance incentive program can add an extra quarter of a personal day to each month that an employee does not miss work, for example. Employers can also set up programs in which employees swap unused sick days for cash at the end of the quarter, or can do something simple like ordering lunch for all employees with perfect attendance.

Attendance Policies and the NLRA

A work rule prohibiting employees from engaging in protected concerted activity or one that can be reasonably construed as attempting to prohibit protected concerted activity may be found unlawful. Under Section 7, employees have the right to go on strike and walk out. Rules prohibiting employees from walking off the job can be read to include protected strikes and walk-outs. Similarly, rules denying off-duty employees access to parking lots, gates and other outside nonworking areas are prohibited excepted where justified by business reasons or narrowly tailored.

However, rules prohibiting employees from leaving the employer's property during work time without permission will not be interpreted as covering employee strikes.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

How to Write an Employment Policy

How to Correct an Attendance Problem

How to Create an Employee Handbook

How to Deal With an Employee Who Has a Hygiene Issue

How to Deal With an Employee Who Is Habitually Late

How to Deal With an Employee Who Violates the Dress Code

How to Handle an Employee Who Wants to Display Religious Imagery in the Workplace

Visitor Policy

Gambling Policy

Horseplay Policy

Personal Electronic Devices Policy

Business Casual Attire Policy

Confidential and Proprietary Information Policy

Conflicts of Interest Policy

Office Decorations Policy

Dress Code Policy

Dress Down Days/Summer Attire Policy

Attendance Policy

Nepotism Policy

Political Activity Policy

Employee Solicitation Policy

Employee Tardiness Policy

Update an Employee Handbook

Facial Hair Policy

Grooming Policy

Outside Employment Policy

Bullying and Harassment - Supervisor Briefing

United States Department of Labor, Veterans' Employment and Training Service

EEOC website