23 Employee Handbook Revisions for 2011

Presentedas an educational service by

Oregon Business AttorneyAlan Thayer

This information is presented asan educational service. For legaladvice or answers to speciﬁcquestions, consult an experiencedlawyer.

Every year, we track new legislation, court decisions, social changes, workplace issues and important trends that can affect your workplace. “We keep track of We then recommend Employee Handbook updates to our clients so they can stay on topchanges in of these developments. More importantly, weemployer liability help employers prevent costly employee lawsuits.issues so you do not have to.” We keep track of changes in employer liability issues so you do not have to.

This year, we recommend 51 changes, set outon 19 employee handbook pages, covering 23different topics.This includes employer protections inresponse to two court cases where minimumdamages of $10,000 per employee may nowbe authorized.These 23 topics are presented here for yourinformation.

Proactive, take chargeemployers will update their employee handbooks accordingly.

Workplace Flexibility It should go without saying that you can modify the terms and conditions of employment at your organization. A federal court in Maryland and a state court in Hawaii, however, have disagreed.1 Many employees and state regulators now seem to think of jobs as a vested right regardless of performance or conditions. Language should be added to your handbook to preserve your right to modify jobs, compensation and beneﬁts to meet your needs.

Temps to Hire You should be aware of the legal dangers created by probation periods for new employees (DO NOT do this). You can, however, hire new workers as temporary employees.2 This gives you time to evaluate before promoting to a full or part time position. Have language added to your handbook describing this type of employee. We will write more about this approach in a future LegalBriefs newsletter.

No Work No Holiday Pay Do you want to pay holiday pay to employees that are on extended leave (other than vacations)?3 This includes extended personal leave, military leave and state and federal family and medical leave? This can be addressed with a revision to your holiday pay policy.

No Work No Vacation Pay Do you want time spent on an extended leave (other than vacation time) to count towards vacation calculations?4 This includes extended personal leave, military leave and state and federal family and medical leave? If not, your handbook vacation policy can be revised. But do so carefully.

Leave Terminations Employees often believe that they can not be terminated when they are on state or federal family or medical leave.5 This is not true. Handbook revisions can help you if it ever becomes necessary at your organization to layoff or terminate an employee on family or medical leave.

Driving Safety Do you know what your employees are doing when they operate a motor vehicle on your organization’s business? Recent studies have shown the risks of driving while distracted. A survey just came out showing that texting,6 emailing, eating, dressing (and undressing), kissing, hair styling, applying makeup, reading, writing, playing video games and even sexual acts (15% of drivers) are occurring behind the wheel. Revise your handbook in response to these revelations.

Attendance Policy Trap You can fall into a liability trap if an employee you discipline for violating your attendance policy later claims his or her problems were7 caused by a disability. You can head this off with a handbook revision.

Pirates & Wenches Inappropriate costumes and outﬁts at parties and in the workplace (think Halloween) continue to cause problems for employers.8 Additional handbook provisions should be added.

Identity Theft Workplace identity theft appears to be a growing problem.9 Handbook revisions should be added in response.

Chewing Tobacco Do you really need to tell employees that chewing tobacco is prohibited in buildings10 and vehicles? Evidently you do.

Social Media Part 1 The Federal Trade Commission (FTC) adopted a new “guide” aimed at online marketers that can also ensnare employees that make comments online and their employers.11 Handbook provisions should be added to help prevent FTC claims. As discussed below, however, other federal agency pronouncements are in conﬂict with the FTC position.

Social Media Part 2 Employers have a duty to prevent and correct harassment. There is no doubt courts will rule this includes12 online threats, intimidation, bullying and harassment. Your interest in preventing this type of conduct should be addressed in your employee handbook.

Social Media Part 3 The National labor Relations Board (NLRB) apparently is not aware of the FTC’s concerns or the risks of online harassment.13 The FTC has taken the position that employer’s guidelines on blogging and social networking can constitute unfair labor practices, even for employers that do not have a union and are not currently the subject of an organizing campaign.

The social media policy provisions discussedabove must be added with the new NLRBposition in mind.Until the current or a future administrationdevelops coherent social media guidelines foremployers, you should have an experiencedlawyer help you walk this narrow line.

Employee Generated Content Who owns online content relating to your business created by your employees?14 This is a very real question that a client and numerous other businesses faced last year. A proper handbook provision should be added putting your employees on notice that content relating to your business is a “work for hire” owned by you.

Computer Care You rely on employees to use common sense to care for the computers they use. How is that working?15 Are there problems that you do not know about? Computer care expectations should be added to your handbook.

Laptop Care Yes, laptops are computers. There are, however, additional tips employees16 should follow to care for this important tool. They should be added to your handbook.

Cell Phone Care Even though cell phones have been around for a number of years, misuse and abuse occur every day. Sometimes out of ignorance.17 Other times out of errors in judgment. Tips advising and reminding employees how to care for phones you provide should be added.

Federal Wire Tap Act It has been believed that a standard notice to employees shielded employers from claims under the Federal Wire Tap Act (a law aimed at organized crime). This act provides for minimum awards of18 $10,000 or $100 per day of violation, whichever is greater. A new decision from the U.S. Court of Appeals for the 7th Circuit and a recent decision by a Texas Federal District Court changes everything.

These rulings put employers at risk for aminimum of $10,000 per employee, evenwhen there has been no damage.Adding a notice provision to your employeehandbook is the least that you should do.We found a simple way to also obtain anaffirmative consent from each employee thatshould comply with the Federal Wire Tap Act.

Third Party Retaliation In January 2011, the United States Supreme Court ruled that third parties can sue employers for retaliation.19 Best practices start with careful handbook language.

Severance Pay You are under no obligation to pay severance pay to a departing employee. However, in the right case, it can be a great way to prevent problems and get a release during layoffs or when terminating problem20 employees. If you have not done so already, add a new provision making clear that severance pay is not to be expected but is instead up to your discretion.

Arbitration You may be aware that Oregon adopted a statute a few years ago limiting employers’ use of arbitration agreements. That statute appears to violate the Federal21 Arbitration Act. One federal court has already agreed that is the case.

If you can, you should comply with theOregon arbitration agreement statuterequirements.If you can’t, you still should obtainagreements to submit claims to arbitration.Unfair labor practice claims, however, must beexcepted.A handbook policy alone will not suffice.We, however, have found a way you can haveemployees agree to arbitration withoutdisrupting your workplace.

Employee Questions Would an employee claim they do not understand one of your policies after you discipline or terminate them for violating that policy?22 Of course they would. A handbook provision should be added for this very situation.

Reporting Complaints Last year, we recommended comprehensive workplace complaint reporting procedures. Of course, it is good to get early warnings of problems before they turn into serious liability risks.23 The real purpose though is to head off after- the-fact claims by terminated employees that “oh yeah, something bad happened in the past that I did not report and therefore I want money.” An additional reporting option should be added to this policy.

Thats it!

23 Employee Handbook Revisions for 2011

For other employee handbookupdate recommendations overthe last few years, go toour Recent EmployeeHandbook Updates summary.

For more tips and information,subscribe to our free emailnewsletter, LegalBriefs.

Oregon Business AttorneyAlan Thayerwelcomes your questions and comments 541-345-2325 • www.thinkILG.com • alan@thinkILG.com

541-345-2325 • www.thinkILG.com • alan@thinkILG.com

23 Employee Handbook Revisions for 2011

by Alan Thayer

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