Updates for Your Employee Handbook
By Paige McAllister, SPHR, SHRM-SCP
Every employer – regardless of size, industry or location – should have an employee handbook, which provides important information about the company’s rules and expectations. But having one is only part of the equation. Your company or organization should also review the employee handbook on a regular basis in order to make sure it is up to date and matches current practices and regulations.
Here below are some suggestions on specific topics that might need to be updated to either stay in compliance with regulatory changes or to keep current with workplace and employee trends.
Accommodation for Nursing Mothers: The Affordable Care Act (Obamacare) has amended the Fair Labor Standards Act (FLSA) to require companies to provide proper accommodation for nursing mothers during their baby’s first year. This accommodation includes a time, privacy and proper refrigeration for expressing milk. This impacts all employers who fall under FLSA regulations (which is most), so be sure the policies in your employee handbook address this.
Probationary Period: If employment at your company is at-will, then you are able to terminate an employee for any reason at any time, not just during the first 60 or 90 days. So if your employee handbook mentions a “probationary period” for new hires, you want to make sure that it doesn’t imply that, upon completion, the employee has the right to a permanent job. In that case, make sure that any language regarding probationary periods clearly states that employment is at-will during and after the probationary period and completion of the probationary period does not alter an employee’s at-will status in any way.
Protected Concerted Activity (PCA): Under the National Labor Relations Act (NLRA), all employees (union and non-union) have the right to discuss their working conditions, including their wages, work environment, safety and/or opinions and disagreements with the company or management. You must make sure none of your policies prohibit an employee from discussing what is protected. Policies often impacted by this are those concerning confidentiality, non-disclosure, use of social media, media relations, general standards of conduct and conflict of interest. Review these policies to be sure that they do not prohibit employees from discussing their working conditions. It is still legal and appropriate to prohibit actions such as divulging client, confidential or proprietary information, speaking on behalf of the company without authorization, or discriminating against or harassing another employee.
Social Media Use: Even if your employees do not have access to computers, email or the internet at work, they probably do outside of work. It is for this reason that a policy governing the employee’s use of social media (i.e., Facebook, Twitter, blogs, etc.) is so important. While, for the reasons outlined above, you cannot restrict an employee from posting negative statements about the company, you can be clear that action will be taken against employees who use social media to discriminate against or harass another employee, release confidential company information and/or speak on behalf of the company when not authorized.
Disciplinary Action: An employee handbook should have a clearly stated “progressive discipline process” that spells out that formal warnings will be given for poor performance or bad behavior on the job. Typically this process begins with a verbal warning (that the manager keeps note of) and proceeds to a written warning, suspension, final warning and termination. That said, it is equally important to not restrict the company into following a specific order of discipline in all circumstances. Instead, state wherever applicable that an employee will be subject to disciplinary action, up to and including termination, based on the circumstances of each case.
Retaliation: Retaliation cases now represent the largest number of claims investigated by the Equal Employment Opportunity Commission. We have heard of a number of cases where a company has been found liable for retaliation even after a claim of discrimination or sexual harassment was dismissed. Retaliation can come in many forms. It can come from a co-worker, supervisor or upper management, and it can be directed against any employee who has made a discrimination or harassment claim, or who participated in an investigation of a claim, whether or not that claim was successful. It used to be acceptable for a company, in its handbooks, to simply state that it does not condone retaliation. However, given the elevated exposure, we suggest the handbook language go much further and affirm that retaliation will not be tolerated, detail what actions are not acceptable, provide a clear reporting procedure, and state the retaliator will face disciplinary action up to and including termination.
Updated Family and Medical Leave Act (FMLA) Language: If your company has 50 or more employees working within a 75-mile radius, you are legally obligated to give employees proper notice of their FMLA rights. This includes an on-site poster, a handbook policy and notices given when the employee requests or inquires about FMLA leave. As the FMLA language has recently changed to include military and same-sex spouse provisions, you should make sure your FMLA policy language is up to date.
State Leave Laws: Many states have their own laws governing leaves of absence and time off. Most of these laws require companies to give their employees proper notice of these rights, including in their handbook policies. State laws include medical or family leave or time off (paid or unpaid) for circumstances such as sick, jury duty, voting time, school visitation or to recover from domestic abuse or sexual assault. Since every state is different, you need to know what laws are in effect in all the states in which you operate and have policies in your handbook accordingly. If your handbook covers employees in multiple states, be sure to clearly state which employees are impacted by specific policies or you could be required to follow that policy for all employees.
As always, make sure that your practices mirror what is stated in the handbook and that your policies are applied to all employees equally and consistently.
Paige McAllister is a contributor of Affinity HR Group, LLC, IIABNY’s affiliated human resources partner. Affinity HR Group specializes in providing human resources assistance to associations such as IIABNY and their member companies. To learn more, visit www.affinityhrgroup.com.