The turn of the year is often a good time to review company
policies. We’re weighing in with some favorite perennial professional
resolutions and perhaps a few new suggestions that might make for a happy 2014.
What’s in a policy?:
In the employment world, issues involving e-mail, the
Internet, and social media are changing dramatically. For a long time, we
suggested that employers develop a policy that set standards for appropriate
e-mail communications and Internet use, particularly to prevent e-mails from
becoming a fertile source of evidence for claims of wrongful termination,
discrimination, and harassment and to protect your company’s confidential
information.
Social media polices. In recent years, we’ve seen what we
thought were reasonable expectations and standards for appropriate e-mail,
Internet, and social media postings (e.g., prohibitions on disparaging,
inappropriate, demeaning, or unprofessional statements or on the disclosure of
confidential information like wages and other employment-related information)
run afoul of the National Labor Relations Board’s (NLRB) views on employer
policies that impermissibly chill, or dissuade, employees from communicating or
exercising their rights to engage in protected concerted activity.
To start the new year, take another close look at your
e-mail and social media policies. Does your policy provide specific guidance so
employees will know what they can and cannot do and you don’t unintentionally
chill their rights to engage in protected concerted activity? Are the
prohibitions appropriate, or do they infringe on communications the NLRB
considers protected concerted activity?
While you’re at it, what else is in your handbook?:
Beyond social media policies. It is not only a good idea to
review policies that are currently the subject of scrutiny―such as social media
policies and employment- at-will statements―but it’s also a prudent measure to
review all the policies in your handbook on a regular basis. When was the last
time you reviewed your handbook and read your policies with a critical eye? Are
your policies up to date? Are they still working well for you? Has your company
changed size, and do you have different legal obligations as a result? An
annual review is still recommended, and you might schedule it for the beginning
of each calendar year.
Recent NLRB guidance has given us a reason to look beyond
social media policies and examine many other standard policies to see whether
they unduly restrict employees’ rights to engage in protected concerted
activity. Does your handbook’s employment-at-will policy provide for the
possibility that someone in your organization can sign an agreement that
recognizes a union or a labor contract, establishes a term of employment, or
modifies the employment-at-will standard?
Code of conduct. Would your code of conduct policy pass NLRB
muster? The Board has shown concern that provisions prohibiting employees from
engaging in activity that might “raise questions as to the company’s honesty,
impartiality, reputation or otherwise cause embarrassment” or “create a
conflict of interest for [employees] or the company” and a provision requiring
employees to “follow all restrictions on use and disclosure of information”
might impermissibly chill their rights to discuss the terms and conditions of
their employment.
Internal investigations. Do you have a blanket prohibition
on employees discussing investigations during the course of an inquiry? The
NLRB also has expressed concerns about such policies. Finally, you should make
sure your dress code, confidentiality, and nondisparagement policies aren’t too
far-reaching in their restrictions.
FLSA safe harbor. Exemptions from the Fair Labor Standards
Act’s (FLSA) overtime requirements for executive, administrative, and
professional employees can be destroyed if you make improper deductions from
their pay (i.e., deductions inconsistent with them being paid on a salaried basis).
However, there’s a “safe harbor” for employers that mistakenly make improper
deductions if you (1) have a “clearly communicated” policy prohibiting improper
deductions, including a complaint mechanism, (2) reimburse employees for any
improper deductions, and (3) make a good-faith commitment to comply in the
future. An FLSA safe-harbor policy should be included in your employment
handbook.
FMLA leave. If you haven’t reviewed your Family and Medical
Leave Act (FMLA) policy in a while, you’ll need to make sure it covers recent
changes in the law allowing new military-related leave. Your policy should
include provisions addressing military caregiver leave and qualifying exigency
leave.
Harassment and discrimination. All employers need to include
an antiharassment and discrimination policy in their handbooks. Older
antiharassment policies often prohibit only sexual harassment. Your policy
should cover harassment based on sex, race, national origin, disability, age,
religion, and any other protected category under federal or state law. Also,
“genetic information” is now a federally protected category, so you should
ensure your policies address discrimination based on genetic information.
Arbitration agreements. Arbitration agreements should be
binding contracts, so they must be separate from employment handbooks.
Nevertheless, it’s a good idea to review your arbitration agreements when
you’re updating your employment handbook. Recently, the NLRB ruled that it’s an
unfair labor practice to require employees to arbitrate class action claims.
The ruling hasn’t been tested by the courts yet, but if you have an arbitration
agreement that includes class claims, consider revising it.
Computer, Internet, and e-mail usage. With the prevalence of
technology in the workplace, it is a good idea to consider whether you should
have policies addressing employees’ use of technology.
If you’ve been meaning to review and update your handbook,
the beginning of the new year could be a great time to read your policies with
a critical eye.
What about job descriptions?:
It may be too big a task to review and update all your job
descriptions at once, so you often hear that employers update job descriptions
when they’re hiring for a particular position. The downside of that approach is
that current and accurate job descriptions can be helpful even when you haven’t
had any turnover.
Think of the last time you looked at the “essential
functions” of a job while considering an accommodation request or another issue
involving the Americans with Disabilities Act (ADA) when there had been no
reason to look at the job description for a few years. Perhaps 2014 is a good
time to schedule a systematic review and update all your job descriptions over
the course of the year.
What would you like them to know?:
Yes, we’re talking about supervisor training. Is there any
training that could make HR management at your company easier in 2014? For
example, would training your managers on the company’s expectations about the
issues and decisions that should be discussed with HR before an adverse action
is taken help you address issues proactively and avoid risky situations later?
Would training on the importance of timely, accurate, and well-prepared
performance documentation reduce management frustration and the number of times
you can’t address performance concerns the way you might like to because you
don’t have the documentation to support your actions?
If you answered yes―or even maybe―to those questions, why
not come up with a list of topics you wish your supervisors knew more about and
put together a training schedule for 2014? And then, while you’re at it, come
up with a list of things you would like to know more about and see what you can
do to further your own personal training.
Bottom line:
We wish you luck and success with your New Year’s
resolutions. Be sure to call your employment law attorney if you have questions
about any of the issues mentioned in this article. As always, we wish you a
happy, safe, and prosperous 2014.
Jeanine Poole is an attorney with Sulloway & Hollis in
Concord, New Hampshire. She may be contacted at jpoole@sulloway.com
Source: HR
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