An employee handbook or employee policies that are not up-to-date with current laws may hurt an employer later. An employee handbook or policies are often the first place an employee and employer turn when seeking guidance. If it is not up-to-date, the resulting actions may not be in line with current law.
At a minimum, “[a] well-written handbook and policies set forth [an employer’s] expectation for [their] employees, and describes what they can expect from [the] company. It also should describe [the employer’s] legal obligations as an employer, and [the] employee’s rights.” Writing Employee Handbooks, U.S. Small Business Administration, https://www.sba.gov/content/employee-handbooks (last visited March 10, 2016).
Some recent changes in the law that may impact an organization’s employee handbook or policies include:
– SCOTUS Same-Sex Marriage Ruling: Employers must provide same-sex married couples the same health and retirement benefits as offered to other married individuals.
– LGBT Rights: LGBT employment rights are currently evolving. However, it may be in an organization’s interest to express their policy of treating employees equally and fairly and will not discriminate unlawfully.
– OFCCP Pay Transparency Rule: Employers with federal contracts must comply with this rule which prohibits certain contractors from preventing the free discussion of pay among applicants and employees.
– Collective Bargaining: Overly broad polices relating to what employees may say inside and outside of an organization may violate bargaining rights.
– Social Media and Data Privacy: Conducting work and personal business on company-owned equipment can raise privacy and usage issues. Moreover, protecting data on these same devices is an area of concern for employers.
– Reasonable Accommodations: Under certain conditions, employees are entitled to reasonable accommodations. A handbook and policies should indicate that employees must request and qualify for these accommodations.
– Retaliation: When an employee brings a claim for retaliation, the witnesses and those who participate in the investigation of the claim desire protection. The handbook and policies should not promise confidentiality for those who make these complaints, but note their identities will be revealed on a need-to-know basis.
– Wages and Payroll: Two issues that can arise with pay are unauthorized overtime and improper deductions. Handbooks and policies should state that permission must be sought for an employee to work overtime. The handbook and policies should highlight the organization’s policy for improper deductions and actions to correct.
– Leave Benefits: Organizations may decide to offer additional leave or other benefits not required by law.
– Nursing Mothers: A statement regarding the rights and accommodations for certain nursing employees should be included in handbooks and policies for organizations to which the law applies.
– Attendance: Handbooks and policies should outline accommodation procedures when an employee may be on leave, whether through the Family and Medical Leave Act or Americans with Disabilities Act.
– Smoking and Marijuana Use: The handbook and policies should indicate where tobacco may be used at the organization and indicate that e-cigarettes and other tobacco products are included. Marijuana, for the most part, can be treated like other drugs and an employer may include a statement that employees should not be under the influence of alcohol, illegal drugs, and even legal (in some states) drugs that impair them while working.
Handbooks and policies are go-to documents that should be drafted in light of an organization’s size, location, and particular needs. Employers are encouraged to have their employee handbooks and policies reviewed and revised regularly by legal counsel. Handbooks and policies do not need to be amended to reflect each and every law passed, but they should be amended to reflect those that are the most recent and significant. While handbooks and policies are often turned to in times of employee-employer disputes, they can also be a tool to attract and retain employees. In this way, they can be thought of as a statement of the organization’s culture and philosophy.
Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.
The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.