One of the most important documents for any business is the employee handbook. Business owners and employees serving in a supervisory capacity need to view the employee handbook as an asset. Why? Because a well-written and detailed employee handbook can effectively convey the policies, office rules and culture of your business. As a result, it is extremely important to review and update your company’s employee handbook routinely to ensure it is current and adheres to the myriad of state and federal laws, regulations, and policies. An outdated and/or inaccurate employee handbook could expose your company, along with your employees, to significant legal liability.
For any employee handbook to be effective and properly convey adherence to the law requires staying abreast of new state and federal laws. For example, many states have adopted “ban the box” initiatives that prohibit employers from asking job applicants about their criminal history. These initiatives gained national attention in just the last few years. In that time, 20 states have passed laws adopting “ban the box” regulations that apply to public employers. Furthermore, 11 states have passed even stronger “ban the box” laws that apply to both public and private employers. If such a law has been enacted in your state, it is important to be proactive and update your employee handbook.
For 2019, here is a list of particular areas and issues where you may want to consider revising or adopting new policies and guidelines in your employee handbook.
Unless you lived under a rock for the past year, you have probably heard of the #metoo movement. This movement has placed a renewed emphasis on preventing sexual harassment and unwanted sexual advances. As a result, you should your company’s sexual harassment prevention and response policies. Many states have passed new laws to try and address sexual harassment issues. For example, New York requires that employers develop a sexual harassment prevention policy that meets or exceeds minimum standards established by the state. Numerous states have mandated that employers creates and maintain a written sexual harassment policy.
If you are in the process of developing a set of sexual harassment prevention and response policies, make sure that the policies define what exactly constitutes harassment, discrimination, and retaliation. Make sure the policies establish a clear protocol for employees if they believe they were subjected to sexual harassment, including who to report the violation to, how it will be investigated, and so forth. Also, make sure the policies expressly state that your company is fully committed to maintaining a workplace free from all forms of harassment, including sexual harassment.
Along with developing or revising policies on sexual harassment, another key policy that requires regular updates is adherence to federal, state, and local laws concerning employment discrimination. Your company needs to have policies in place to ensure you are not discriminating against prospective applicants and employees on the basis of age, sexual orientation, race, religion, and other “protected characteristics.” Several states expressly prohibit employers from discriminating against applicants and employees on the basis of their gender identity. However, there is no federal law that expressly prohibits discrimination on the basis of an applicant or employee’s identified gender. Though, the federal Equal Employment Opportunity Commission (EEOC) has declared that the already-established protections afforded to job applicants and employees on the basis of sex include an applicant and employee’s sexual orientation and gender identification.
While reviewing your employee handbook, you may want to consider modifying the use of gender-specific pronouns (e.g., he or she, his or her) in your workplace policies. Instead, you may want to consider using gender-neutral pronouns (e.g., as, they, their).
Multiple states, cities, and other localities continue to enact laws and regulations that mandate employers offer some form of family leave and/or sick leave. For example, some jurisdictions have leave laws on the books that require employers to establish a written policy outlining any leave entitlement for employees. Even if your company is based in a state that does not require you maintain a written leave or family care policy, it is best to go ahead and maintain a written policy.
If you are developing a written sick leave and/or family leave policy, make sure to properly define who is eligible for this type of leave. The definitions section should detail the requirements an employee must meet in order to be eligible (e.g., length of service and status as a full-time or part-time employee). Your company should state exactly how much leave is available and how it can be accrued by an employee. You should state whether the leave will be paid or unpaid for the employee who utilizes the leave. You should also detail the procedure that must be followed for an employee to request leave and how much notice they need to provide their supervisor. Your policy should stipulate whether the employee needs to supply written proof of an illness or medical issue.
Of course, your sick leave and/or family leave policies should be vetted to ensure they comply with all federal, state, and local laws. For example, your policy needs to take the federal Family and Medical Leave Act (FMLA) under consideration. The FMLA entitles certain employees to take unpaid leave for specific family and medical reasons and do so with the assurance that they will maintain their position with their employer. However, the FMLA only applies to “eligible” employees. The law stipulates that FMLA applies to an employee who has worked for your company for 1,250 hours during the 12 months prior to the start of leave, according to the Department of Labor. In addition, the FMLA can only be used for the following reasons:
This list is only a general overview. You can read the specific statutory language of the FMLA here.
The FMLA mentions specific statutory protections for employees who have a newborn child. Similarly, your company needs to have specific policies in place for employees who become pregnant. Many states have passed laws requiring employers to provide “reasonable accommodations” for employees who are pregnant and who have recently given birth. For example, a reasonable accommodation is generally a modification made to the structure or manner of an employee’s position or work area enabling them to perform essential job functions.
Your company should provide a level of transparency when it comes to employee compensation and there should definitely not be any pay secrecy policies on the books. Why? Because Section 7 of the National Labor Relations Act (NLRA) enables employees to act together to improve their wages and working conditions. This includes the right to openly discuss wages, benefits, and other terms and conditions of employment. Many courts have found that any company policies that prohibit employees from discussing their compensation with co-workers are clear violations of the NLRA. In addition, some states and localities have enacted laws that expressly prohibit pay secrecy policies.
Any modifications or new benefits should be included in your company’s updated employee handbook. You should also make sure that these new benefits are detailed and made available prior to the open enrollment season. Your policies should make clear when specific benefits are being replaced (e.g., if you are dropping a health insurance provider or adding a new provider) or when new requirements or policies will go into effect.
Many employers are embracing telework for employees (i.e. allowing employees to work from home). However, it is important that this policy be detailed in your employee handbook. For example, if your company sets certain guidelines or thresholds that must be met for an employee to begin teleworking or you limit the number of days an employee can telework, this should be detailed within the handbook.
Another area to check for updates concerns the use of social media and personal mobile devices. If the organization has a bring-your-own-device (BYOD) policy in place, this may impact a policy on the use of smartphones and other devices. However, it’s important that employees understand that taking personal calls or messages during work hours can take away from their productive time. Similarly, employees should be discouraged from visiting their personal social media outside of their lunch hour or break time. The Society for Human Resource Management provides more information on social media use, in particular, including a sample policy template.
You may be surprised to learn that there is no federal or state law mandating employers provide vacation time to their employees. Though, some states have enacted laws that expressly prohibit policies which would force employees to forfeit any accrued and unused vacation time or other paid time off. These policies are often referred to as “use it or lose it” laws. If your company is based in a state with these types of laws on the books, make sure there are policies described in your handbook detailing how an employee can carry over accrued, but unused, vacation time from one year to the next. In addition, you should detail how an employee may be paid for the unused time at the end of the year or when an employee departs for a different job.
Some states have specific regulations detailing how employers should address and manage unused vacation time issues. For example, some states have laws that expressly prohibit use-it-or-lose-it policies. These states mandate that employers allow employees to carry over their vacation time from year to year. Other states permit use-it-or-lose-it policies but only if the employer has a written policy detailing how the employer will not carry over accrued, unused vacation to the following year and will not compensate employees for any accrued, unused time if they decide to leave their job.
If your company is developing a vacation time policy, or is reviewing a use-it-or-lose-it policy, make sure to address carryover and payout at separation. Ensure your policy properly defines who is eligible for leave, including how much time off is available and how it can be accrued by employees. Your policy should detail the procedures for requesting vacation time and how much notice an employee must provide to a supervisor.
Once the employee handbook is updated, the work is not over. In fact, many may argue that the “work has just begun.” This is because the next step requires distributing the new handbook to all employees and possibly offering training or classes to ensure employees are properly informed of the updates.