Monday, January 6, 2014

Corporate Counsel: Is It Time To Strengthen Your Employee Handbook?

By Dee Anna Hays and Caren Skversky

How long has it been since you dusted off your company’s employee handbook?  Dedicating the time and resources to reviewing policies on an annual basis is well worth the investment.  Consider the following five areas during your 2014 review.

1.  Superfluous Language
Most employers have learned that including an at-will policy in the handbook reinforces the principle that employment may be terminated at any time for any lawful reason. Likewise, at-will policies should clarify that the handbook is not a contract, and employers may revise policies without prior notice. Equally, employers should beware of potential promises made by superfluous language. Unnecessary purpose statements, rigid progressive discipline steps, and unrealistic commitments to provide training or a mutually enjoyable work environment should be avoided. Gratuitous leave provisions may lead to Family and Medical Leave Act estoppel arguments. 

2.  Bullying
Twenty-five states have introduced legislation that makes workplace bullying illegal. A criminal statute related to bullying is currently pending in Florida. Employers should consider adding a separate policy to address bullying. This goal can often be accomplished with mutual respect policies, giving a clear definition of prohibited behavior and examples (while being mindful of the National Labor Relations Act).

3.  The National Labor Relations Board (Beyond Social Media)
Much ado has been made regarding the NLRB’s recent policing of social media policies. Yet, this inquiry extends to other policies. Many code of ethics, computer usage, and disciplinary policies may run afoul of the same principles scrutinized in social media policies. In recent decisions, the board has taken issue with dress-code policies that prevent employees from wearing insignia or messages on clothing and at-will policies that state the employment relationship may never be changed. The board has further made clear that employers cannot have a blanket requirement for employees to keep internal investigations confidential. A disclaimer may not save an otherwise defective policy.
4.  Timekeeping and Technology
Due to unrelenting litigation under the Fair Labor Standards Act, time-keeping and overtime policies should specifically prohibit employees from working off-the-clock. Policies should explain it is the employee’s responsibility to report pay errors and how to do so. A related consideration is a policy that addresses employees’ use of their own electronic devices (laptops, smartphones, and tablets) for work purposes. Policies should be crafted to address concerns regarding privacy, protection of confidential information, and working off-the-clock.

5.  Employee Acknowledgments
Employee acknowledgements evidence that employees have received the handbook, and they should be obtained each time the handbook is updated. The acknowledgement can be used to reiterate the at-will policy and to shift responsibility to the employees to raise any questions or concerns about the handbook or company policy. Also note that violations of any company policy, even one not identified in the handbook, can lead to discipline.

A well-drafted handbook is an essential foundation for handling difficult personnel and legal issues. Handbooks that require a complete overhaul may be best handled by legal counsel.