is your employee handbook up to date? essential components and sample policies for 2015
TRANSCRIPT
Is Your Employee Handbook Up to Date?: Essential Components
February 18, 2015
Thomas Benjamin “Ben” HuggettLittler Mendelson, P.C.
1601 Cherry Street, Suite 1400 Philadelphia, PA 19102
Overview Why Do I Need A Handbook?
Guide for Employees
Guide for Managers
Guide for You!
Overview Why Do I Need A Handbook?
Confirms at-will relationship
Communicates policy
Helps ensure uniform treatment of employees
Overview Why Do I Need A Handbook?
Promotes fairness in workplace
Useful in litigation
Overview Why Do I Need A Handbook?
Absence of a handbook will not prevent litigation
Companies without handbooks are more vulnerable
What To Do Before You Prepare A Handbook
What To Do Before You Prepare A Handbook
Review existing policies
Ascertain current practices
Determine needs & goals
What To Do Before You Prepare A Handbook
Solicit input from managers
Decide what works
Use opportunity to change
What To Do Before You Prepare A Handbook
Consider applicable laws!
– Anti-discrimination laws
– National Labor Relations Act
– Family and Medical Leave Act
– State and local laws and regulations
Overview of the Handbook
Overview of the Handbook -General Considerations
Be Clear
Be Simple
Be Direct
Avoid “canned” language
Overview of the Handbook -General Considerations
Avoid unnecessary detailExample:
• Not necessary to include job descriptions
Update handbook regularly!
Overview of the Handbook –Welcome Message
Introduction
–Describe purpose of handbook
Overview of the Handbook - Welcome Message
Avoid promises
Consider and do not contradict other handbook language
Consider all possible interpretations
Preserve at-will relationship
Overview of the Handbook - Introductory Language
Anything wrong here?– “Welcome to ABC Co. We
expect our relationship to be long and prosperous.”
– “XYZ is a Company where employees are treated fairly and build rewarding careers.”
– “At A1 Inc., we consider our associates part of the family. You’ll always have a job here.”
Overview of the Handbook - At-Will Statement
What does “employment at-will” mean?
What makes an employee “at-will”?
What is an “at-will” statement?
Do I need one?
Overview of the Handbook - At-Will Statement
Avoid “contract” language
Add contract disclaimer
– Clear and conspicuous
Do not undermine other provisions
No promises - Poor language lets others decide
Overview of the Handbook - Contract Disclaimer
State that all changes must be written and signed by certain personnel
– e.g., Executive Director, Head of Company, Principal
Reserve right to add, delete, suspend and/or modify policies
Overview of the Handbook - Contract Disclaimer
Suggestion:
– Repeat at-will language in policies that may be construed as limiting at-will relationship
– Obtain employee acknowledgement of disclaimer
– Consult legal counsel
Avoid Specific Language
Avoid words such as “must,” “shall,” and “will.”
Use less mandatory language such as: “should,” “consider,” and “may.”
Other words to avoid are “fair,” “just,” “respectful,” “even-handed,” and “equal.”
The key is to leave room for flexibility, discretion, change, and unforeseen circumstances.
Overview of the Handbook -Acknowledgment of Receipt
Key features:– Affirms at-will employment
– Recognizes Company’s right to add, delete, or modify policies
– Commits to adhere to policies
Get acknowledgement after each revision!
The National Labor Relations Board (NLRB) And Your Handbook
Does The NLRB Apply?
But we are non-union -- Can I just skip this part of the presentation and check my emails?
NO! All employers
must consider the NLRB.
What is the NLRB?
National Labor Relations Board
Enforces the National Labor Relations Act
It has aggressively issued opinions addressing employment policies
Concerted Activities
The NLRB is concerned with Employer policies that interfere with, restrain or coerce employees in the exercise of their right to engage in concerted activities.
Concerted Activity
In DirectTV, the NLRB attacked common handbook rules it found to be overly broad or ambiguous because they would potentially dissuade employees from discussing their wages, hours and terms or conditions of employment with people outside the company.
The rules involved: (1) employee statements to the media; (2) instructions regarding contacting or commenting to the media without pre-authorization from the public relations department; and (3) confidentiality rules advising employees to not discuss details about their job or company business with anyone outside the company
Focus Areas
The NLRB’s assault on handbooks continues– At-Will Employment– Complaint Procedures– Confidentiality– Non-Disparagement/False Statements/Conflict of
Interest– Non-Solicitation– Social Media/Media Relations– Usage of Company Resources– Uniform/Dress Code/Logos– Discipline/Dispute Resolution– Email Organizing (Purple Communications)– Leaving Work Areas
14 Key Policies to Review
1. Use of Electronic Communications/equipment;
2. Prohibitions against public statements by employees;
3. Prohibitions on false statements or disparagement of the employer;
4. Policies prohibiting harassment, confrontational, or disruptive conduct;
5. Confidentiality rules;6. Rules requiring participation in internal
investigations;7. Solicitation and distribution policies;
14 Key Policies to Review
8. Rules restricting the use of employer logos;9. Uniform policies and restrictions on insignia;10.Rules prohibiting leaving work areas without
authorization;11.Rules prohibiting loitering in or entering work
areas while off duty;12.Fraternization policies;13.Social media policies; and14.At-will disclaimers.
EEO and Harassment Policies In Your Handbook
Overview of the Handbook -Equal Employment Opportunity
Useful when defending against discrimination claims
– Government agencies expect it
– Courts expect it
– Juries expect it
– May reduce liability
Overview of the Handbook -Equal Employment Opportunity
Confirm Company “does not discriminate against applicants or employees because of their race, color, religion, sex, pregnancy, age, disability, national origin, or any other basis protected by applicable federal, state, or local law”
Include internal complaint procedure
Include process for resolving complaints
Complaint Procedure
Provides prompt, thorough, and objective investigation of any claim of unlawful or prohibited discrimination; appropriate disciplinary action if warranted; and appropriate remedies for any victim of discrimination.
If you believe discrimination has occurred, you should provide a written or verbal complaint to your supervisor or HR as soon as possible.
Retaliation is prohibited.
Overview of the Handbook -Anti-Harassment
It’s Not Just About Sex!– Prohibit all forms
of unlawful harassment
Overview of the Handbook -Anti-Harassment
Prohibit harassment based on age, race, religion, national origin, disability, and any other protected category
Include internal complaint procedure
Define prohibited conduct
Prohibited Harassment
ABC PCS prohibits sexual harassment and harassment based on race, color, national origin, ancestry, religion, creed, physical or mental disability, age, or any other basis protected by applicable federal, state or local law. All such harassment is unlawful and will not be tolerated.
Prohibited Harassment
Sexual harassment defined as unwanted sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature when:1. Submission to the conduct is made a condition of
employment;
2. Submission to or rejection of the conduct is used as the basis for employment decisions affecting the individual;
3. The conduct has the purpose or effect of unreasonably interfering with the employee’s work performance or creating an intimidating, hostile, or offensive working environment.
Other Types of Prohibited Harassment, Such as . . .
Verbal conduct such as threats, epithets, derogatory comments, or slurs
Visual conduct such as derogatory posters, photographs, cartoons, drawings or gestures
Physical conduct such as assault, unwanted touching, or blocking normal movement
Retaliation for reporting harassment or threatening to report harassment
Overview of the Handbook -Anti-Retaliation
What’s the fastest growing employment
claim?
Retaliation!
Overview of the Handbook -Anti-Retaliation
Prohibit retaliation – by anyone – against employees who complain of unlawful harassment or discrimination
Include internal complaint procedure
Overview of the Handbook -Harassment/Retaliation Policies
Prohibit retaliation against employees who participate in investigations of harassment or discrimination
Anti-Retaliation Policy
Example of Opposition: threatening to file a discrimination complaint with the EEOC or protesting alleged discrimination to a supervisor, co-worker, or other Company official.
Examples of Participation: filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, hearing, or litigation under federal or state employment discrimination statutes.
General Provisions
General Provisions
Application policies
– Application data must be truthful
• Include in handbook?
General Provisions
Workplace Safety
– Affirm commitment to safety
– Encourage employees to report unsafe conditions
– Require employees to report work-related injuries
General Provisions
Workplace ViolenceWhat is it?
– Acts or threats of violence or physical intimidation expressed toward individuals in the workplace will not be tolerated
To whom should it apply?– Employees?
– Contractors?
– Visitors?
– Anyone else?
Policy Against Workplace Violence
Acts or threats of physical violence, including intimidation, harassment, and/or the conduct of business off Company property, will not be tolerated
Applies to all persons involved in Company operations, including Company personnel, contract workers, temporary employees, and anyone else on Company property
Violation of this policy will lead to disciplinary and/or legal action as appropriate
General Provisions
Emergency Evacuations and
ClosingsWho should be notified of
emergencies?
What are the emergency procedures?
– Where can they be found?
General Provisions
Employment Eligibility & Verification
– Compliance with Immigration Reform and Control Act (IRCA)
General Provisions
Nepotism/Fraternization
– Will Nepotism be permitted?
– Will Fraternization be permitted?
– Limits?
•Direct reporting relationships?
•Same department?
General Provisions
Open-Door Policy/Complaint
Procedure
– Encourages ideas and suggestions
– Promotes open communication
– Fosters team environment
– Improves morale
Wages, Hours, and Time-Off Provisions
Wages, Hours, and Time-Off
Wages– Employee Classifications
• Define - for example:
– Full-time
– Part-time
– Temporary
– Exempt
• Ensure conformity with benefits plans!
Wages, Hours, and Time-Off
Wages– Workweek (e.g., Mon. to Sun.)
– Meal & Rest Periods
• Breaks
• Length?
• Paid?
Wages, Hours, and Time-Off
Wages
– Recording hours
• How? Manual recording?
– State payday in writing
– Frequency of pay
Wages, Hours, and Time-Off
Wages– Direct deposit
•Must have advance, written consent
– Safe harbor (FLSA)
•Written complaint procedure
•Helps maintain exempt status
Wages, Hours, and Time Off
Hours– Normal
Company day
• Define
– Overtime
• State when it is ok to work OT
• Prohibit unauthorized OT
Wages, Hours, and Time-Off
Time Off– Notify employees in
writing of policies on:
• Hours
• Holidays
• Sick Leave
• Personal Leave
• Vacation
Wages, Hours, and Time-Off
Time Off– Vacation (cont.)
• Accrual rate
• “Use It or Lose It” or Cap?
• Accrued & Unused Paid on Termination?
– Bereavement
• Required by law?
• How many days?
• Which relatives?
Wages, Hours, and Time-Off
Time Off– Jury Service
• Must it be fully paid?
– Criminal Court Appearance
• Victim or Victim’s Representative or Next of Kin
• Witnesses
• Others?
Wages, Hours, and Time Off
Time Off – Philadelphia allows
victims of domestic violence to take time off
Wages, Hours, and Time Off
Time Off – Family and Medical Leave
• Governed by federal and state law
• Consult legal counsel
– Short-Term Disability
– Voting Time
– Military
– Other?
• Adoptive Parents
Benefits Provisions
Benefits Provisions
Why refer to benefits?
What types of benefits?
– Medical
– Dental
– Vision
– Flexible Spending Accounts
– Workers’ Compensation (mandatory)
Benefits Provisions
Keep it simple
Do not overstate
– scope, eligibility, cost
Conform to plan documents (e.g., SPD)
Reserve right to amend
Confirm plan documents control
Benefits Provisions
Employee Assistance Program (EAP)
401(k)
Life Insurance
Education Assistance
Employee Referral
Bonuses
COBRA
Performance Provisions
Performance Provisions
Personnel Files
– Access?
– Required by law?
Performance Reviews
– When?
– How?
Wage Adjustments
Standards of Conduct
Standards of Conduct
Code of Conduct
– What is not permissible?
• Use illustrative list
• Lawful, off-duty behavior?
– Confirm at-will status
– Progressive Discipline?
• In all cases?
– Consult legal counsel
Standards of Conduct
Attendance– State expectations
• Be affirmative
• Example: “If you are unable to report for work on any scheduled workday, you must notify your supervisor at least one-half hour in advance of your scheduled start time.”
– Be general
– Be flexible
Standards of Conduct
Appearance/DressNecessary?
If so, draft carefully– May violate law if discriminatory
impact on employees because of their sex, race, religion, etc.
– Consult legal counsel!
Ensure uniform enforcement
Standards of Conduct
Drugs & Alcohol
What is prohibited?
Right to search?
– Where?
Right to test?
– Under what circumstances?
Standards of Conduct
No Smoking
Prohibited on premises?
Off-duty?
Standards of Conduct
Solicitation RestrictionsBy whom?
– Employees? Non-employees?
Legal Issues
– Limit to working time
• When employee is being paid to perform services
• Does not include meal or rest periods
– Consult legal counsel
Standards of Conduct
Confidential Information
Define
Prohibit unauthorized use/disclosure
Separate agreement?
Consult legal counsel
Standards of Conduct
Use of Company Property
What property?– Work and storage areas
– Computer and fax systems
– Cell phones, pagers, and PDAs
– Digital cameras
Standards of Conduct -Use of Company Property
Policy applies to all technical resources that are owned or leased by the Company, used or accessed from Company premises, or are used for Company’s business.
Acceptable uses: technical resources are provided for use in the pursuit of Company mission and are to be reviewed, monitored, and used only in that pursuit, except as otherwise provided.
Standards of Conduct -Use of Company Property
Unacceptable uses: technical resources should not be used for personal gain or the advancement of individual views.
Sending, saving, or viewing material that may be considered “reasonably offensive” is prohibited.
Standards of Conduct -Use of Company Property
Access to Information: The computer, voicemail, telephone systems, and data stored on them are and remain at all times the property of the Company.
All information created, sent, retrieved, or stored on the Company’s property or resources shall at all times constitute property of the Company, and should not be considered private or confidential.
All passwords must be made available to the Company upon request.
Termination Provisions
Termination Provisions
Voluntary/Involuntary
Confirm at-will status
Voluntary:
– Request notice period
Termination Provisions
Exit Interview
Reference in handbook puts employee on notice
Generally provides opportunity to improve workplace
Termination Provisions
Final Paycheck
Must pay final wages no later than next business day after date on which discharge occurred.
Termination Provisions
Return of Company Property
– Identify scope of property to be returned
– State to whom it must be returned
– State when it must be returned
Termination Provisions
Job References
Who may provide them?– HR only?
What may be said?– Dates of employment
– Positions held?
– Salary confirmation?
Miscellaneous Provisions
Miscellaneous Provisions
Expense Reimbursement
Transportation/lodging limitations?
Deadline for submission of expenses?
Required receipts?
Advance authorization?
Miscellaneous Provisions
Privacy
Confirm no reasonable expectation of privacy
Limited use of employee data
Questions and Answers