Presentation given at the 2018 Idaho Employment Law Seminar - October 9, 2018 - Boise, Idaho

1. Parsons Behle & Latimer Idaho Employment Law Seminar
ESSENTIALS OF
EMPLOYEE HANDBOOKS
Maria O. Hart
208.562.4893
mhart@parsonsbehle.com
parsonsbehle.com
TUESDAY, OCTOBER 9, 2018 | BOISE CENTRE EAST

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 Highlight the primary reasons for creating a handbook.
 Provide guidance on creating a handbook:
– Drafting guidelines
– Considerations for creating a handbook from existing policies
– Tips for organizing a handbook
 Discuss steps to ensure compliance with the National Labor
Relations Act (NLRA).
 Highlight best practices for distributing & maintaining a
handbook.
Purpose of this Presentation

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There is no federal law requiring private employers to
provide handbooks to their employees.
Reasons to provide a handbook include:
 A handbook provides an opportunity to formally welcome
new employees, introduce the organization and explain
expectations.
Key Reasons to Create a Handbook

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 Grouping various employment policies together in a
handbook makes it easier for an employer to ensure that
each employee receives copies of all relevant policies.
 A handbook is a centralized place for employees to look
for answers to common questions such as how often
employees are paid.
 Handbooks and signed acknowledgments can assist
in an employer's legal defense.
Key Reasons to Create a Handbook

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First Step: Decide which policies to include.
– Some policies are required or recommended for all employers
such as an anti-harassment policy.
– Other policies are optional and their inclusion in a handbook
largely depends on the employer's policies and procedures.
• Examples: Telecommuting policy, corporate credit card use, overnight
travel, bereavement leave.
Creating a Handbook

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A handbook should be tailored to meet the specific needs of
your workplace, and should:
 Use a positive and professional tone that matches your
organization's culture.
 Eliminate unnecessary complex or legal terms.
Creating a Handbook: Drafting Guidelines

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 Avoid overly rigid disciplinary rules and any other language
that could be interpreted as creating a contractual
obligation requiring just cause for termination.
– TIP: Simply state discretion to discipline and terminate the
employment relationship.
 Include enough information so that the policies can be
understood, but avoid providing too much detail.
Creating a Handbook: Drafting Guidelines

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 Evaluate the demographics of the workforce.
– If employees speak a language other than English, consider
providing the handbook in an alternate language.
 Use situations that are familiar to employees when
providing examples.
 Include contact information for an employer representative
who employees can contact if they have any questions
about the policies.
Creating a Handbook: Drafting Guidelines

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 NOTE: We do not recommend this approach.
Creating a Handbook from Existing Policies

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 But, if you proceed, consider conducting an audit to
confirm all existing policies are up-to-date.
 You should be certain all policies:
1. Comply with current law.
• In addition to your organization’s compliance and legal obligations,
policies should demonstrate your commitment to adherence to current
law because the policies in a handbook often become exhibits in an
employment litigation or administrative charge.
Creating a Handbook from Existing Policies

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2. Are current with respect to the employer's business practices.
3. Are internally consistent and do not contradict each other.
E.g., the complaint procedures in an equal employment
opportunity policy, anti-harassment policy and anti-retaliation
policy should be consistent with one another to:
• increase the likelihood that employees will use the proper/desired
procedure;
• decrease the risk of confusing employees; and
• streamline your process for responding properly and in a timely
fashion.
Creating a Handbook from Existing Policies

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4. Use one voice and make sense when read together.
Creating a Handbook from Existing Policies

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 Organize policies by subject matter.
– Use section headings to break up the policies.
 Create a table of contents.
– Employees can more easily find a policy, or group of policies, if the
handbook includes a table of contents.
 Consider using individual pages for each policy instead of
including multiple shorter policies on the same page.
– TIP: Organize the pages in a loose-leaf binder so that individual
pages can be replaced easily when a policy is updated.
Tips for Organizing a Handbook

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 For online handbooks, consider using an online
acknowledgment and verification of having reviewed
policies.
 Include the date on the first page of the handbook or if
using a loose-leaf binder, on each page.
– This makes it easier to confirm that a handbook includes the
most up-to-date policies.
Tips for Organizing a Handbook

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 Employers must ensure their handbooks are drafted in
compliance with applicable federal employment laws.
 In addition, both unionized and nonunionized employers
must ensure their policies comply with the NLRA.
Compliance with the
National Labor Relations Act

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Unionized and nonunionized employers must ensure that:
 Their employment policies and handbooks do not infringe
on rights employees have under the NLRA.
 They do not enforce otherwise lawful policies to restrict
employees' rights under the NLRA.
Compliance with the
National Labor Relations Act

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 Under the NLRA, employees have the right to
communicate for the purposes of forming or joining a
union or to engage in other protected concerted activities.
 These rights are known as Section 7 rights.
– Interfering with Section 7 rights violates Section 8(a)(1) of the
NLRA (29 U.S.C. § 158(a)(1)).
Employees' Section 7 Rights
under the NLRA

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The National Labor Relations Board (NLRB) consistently
holds that an employer interferes with Section 7 rights by:
 Promulgating an employment policy that explicitly restricts
Section 7 activity.
 See Martin Luther Mem'l Home, Inc., 343 N.L.R.B. 646
(2004) (Lutheran Home), overruled in part by Boeing Co.,
365 N.L.R.B. No. 154, slip op. at 1, 3, 7-14 (Dec. 14,
2017).)
Compliance with the NLRA

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An employer can also violate the NLRA by simply
maintaining a policy that would "reasonably tend to chill"
employees from exercising their rights under the NLRA,
including communicating about employment terms and
conditions. This is true even where:
 No employees engage in concerted activity covered by
the policy.
 The employer does not enforce the policy.
 See Lafayette Park Hotel, 326 N.L.R.B. 824 (1998).
Compliance with the NLRA

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 The NLRB's analysis of policies that are facially neutral as
to Section 7 activity but potentially could impact Section 7
activity is more in flux.
 The NLRB currently considers and balances:
– The nature and scope a policy's impact on Section 7 activity
from a reasonable employee's perspective.
– The employer's legitimate justifications for maintaining the
policy.
NLRA & the Boeing Decision

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 Under this analysis, an employer may violate Section
8(a)(1) of the NLRA by maintaining an employment policy
that, when reasonably construed from an employee's
perspective, would both:
– Prohibit or interfere with the exercise of Section 7 rights.
– Have an adverse impact on Section 7 rights that the employer's
legitimate justifications for maintaining the rule do not outweigh.
NLRA & the Boeing Decision

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 When drafting an employment policy that might restrict
employees' communications or conduct, you should:
– Clearly state the purposes of the policies.
– Identify specific activities that are prohibited.
– Consider including specific disclaimers of what activities are not
prohibited under the policy.
NLRA Considerations:

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– Implement and consistently enforce the policy before there is any
indication that a union is attempting to organize its employees.
• The NLRB generally holds employer policies restricting employees'
communications or conduct to be unlawful when an employer's decision
to either issue a new policy, or start enforcing an existing policy more
stringently coincides with or follows union activity (see Lutheran
Home and Cannondale Corp., 310 N.L.R.B. 845 (1993)).
– Be particularly aware of risks associated with regulating
employee communications, such as in social media policies.
NLRA Considerations:

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Employers should make handbooks available to employees
either electronically or by provision of a hard copy:
 When the handbook is first created.
 At hiring, such as at new employee orientations.
 Each time the handbook is updated.
Distributing or Posting a Handbook

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 First time with Handbook? Consider scheduling a meeting
to introduce the handbook to all employees.
 Best practice is to designate a specific person to distribute
or coordinate access to them.
– Usually from HR.
Distributing or Posting a Handbook

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 Ensure that all new employees receive electronic
access or a hard copy.
 Orientation: Set aside time during orientation for new
employees to:
– Review the handbook.
– Ask any questions they may have as they read through the
policies.
Distributing or Posting a Handbook

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 Handbooks should include an acknowledgment of receipt,
review and understanding at the end.
 The acknowledgment should include a disclaimer that
nothing in the handbook creates an employment contract.
 The acknowledgement should state that the employer has
the right to modify or delete policies without notice.
Distributing or Posting a Handbook:
Employee Handbook Acknowledgments

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Best practice is for employers to:
1. Set a deadline for return or completion of signed
acknowledgments.
2. Keep signed acknowledgments in the respective employee's
personnel file.
3. For electronically signed acknowledgments, consider
maintaining a separate manually signed acknowledgment.
4. Identify the title and date or version of the handbook for which
the employee acknowledges.
Distributing or Posting a Handbook:
Best Practices

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 Review handbooks periodically to ensure that all policies
are current and lawful.
– Some do this annually. (We encourage this!)
– Others designate a particular person to monitor changes in the
law or in the employer's procedure on an ongoing basis.
 At a minimum, a handbook must be reviewed and revised,
if necessary, when:
Maintaining a Handbook

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 At a minimum, a handbook must be reviewed and revised,
if necessary, when:
1. There is a change in the law.
2. There is a change to the employer's policies or procedures.
3. The employer expands into new states.
Maintaining a Handbook

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 A revised handbook should indicate that it supersedes
any prior handbooks so that employees are clear about
which policies are current.
 Keep copies of any older versions.
Maintaining a Handbook

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 Welcome Statement
 Opening Disclaimer
– The policies in the handbook are guidelines only.
– Company has the right to modify or delete policies in the
handbook without notice.
– The employment relationship is at-will.
 Background Check Policy
– If you do these, have a written policy.
Structuring a Handbook: Introduction

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EEO Policy Anti-Harassment
Anti-Retaliation Disability Accommodations
Religious Accommodations
 Not legally required.
 However, including these policies is strongly encouraged.
 They demonstrate a commitment to comply with applicable
laws and to encourage resolution of problems before they
become legal claims.
General Policies

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 Most important.
 Posters
 Again, not technically required.
 Purpose and benefits include:
– Demonstrate compliance with anti-discrimination laws.
– Support a legal defense against discrimination claims.
– Outline a complaint procedure for employees who feel they
have been subjected to discrimination.
EEO Policy

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 Not required by federal law.
 It helps to demonstrate reasonable care to prevent and
promptly correct harassing behavior.
– This is a necessary element of the Faragher-Ellerth defense.
Anti-Harassment Policy

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 This is the partner policy to EEO and anti-harassment
policies.
 Not required by federal or state law.
 A stand-alone retaliation policy is best because retaliation
can occur in contexts other than discrimination or
harassment.
– I.e., workers' compensation laws, laws governing health and
safety and employment leave statutes.
Anti-Retaliation Policy

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 Do you have 15 or more employees?
 Best practice is for employers covered by the Americans
with Disabilities Act of 1990 (ADA), as amended by the
ADA Amendments Act of 2008, to implement and
maintain a disability accommodations policy.
 Describe the Company’s reasonable accommodation and
interactive process.
 Identify the people involved with this process.
Disability Accommodations Policy

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 Not legally required.
 Can be brief, or more expansive.
If you believe you need an accommodation because of your religious beliefs or practices or
lack thereof, you should request an accommodation from the [DEPARTMENT NAME]
Department. You may make the request orally or in writing. [EMPLOYER NAME]
encourages employees to make their request in writing [on [EMPLOYER NAME]'s religious
accommodation request form] and to include relevant information, such as:
 A description of the accommodation you are requesting.
 The reason you need an accommodation.
 How the accommodation will help resolve the conflict between your religious beliefs or
practices or lack thereof and one or more of your work requirements.
Religious Accommodations Policy

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 Not required by federal law.
 Help minimize the risk of wage and hour claims under the
Fair Labor Standards Act of 1938 (FLSA).
– You are a covered employer if:
• annual sales total $500,000 or more
OR
• are engaged in interstate commerce
Payroll Practices and Compensation

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Designates each employee as either exempt or nonexempt in compliance with
applicable federal, state, and local law.
 Exempt Employees. Employees who are designated as exempt are paid a fixed salary and are
not entitled to overtime pay.
 Nonexempt Employees. Employees who are designated as nonexempt are entitled to overtime
pay at a rate of one and one-half times their regular rate of pay for all hours worked over 40 in a
workweek, as required by applicable federal, state, and local law.
 Regular Full-Time Employees. Regular full-time employees regularly work at least [40] hours per
workweek, except for approved time off.
 Regular Part-Time Employees. Regular part-time employees generally work [#] hours or less per
workweek.
 Temporary Employees. Temporary employees are generally hired on a temporary or project-
specific basis, with either full- or part-time hours.
Employee Classifications

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 Include a general attendance policy.
 Set business and work hours in a written policy to help:
– Determine when nonexempt employees work more than 40
hours in a particular workweek.
– Properly calculate overtime pay for a particular workweek.
– Promote a strong defense to wage and hour claims in litigation
and in the context of government audits.
Workweek and Business Hours

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 Good for clarification
 Set up direct deposit
 List mandatory and voluntary payroll deductions
– I.e., taxes, social security, insurance, garnishments
 Instruct employees to immediately report errors
 Include a complaint mechanism for employees
Pay Period, Payday, & Paycheck Deductions

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 Good practice, not required.
 Can include in payroll/pay day section
 Helps ensure accurate time records and that nonexempt
employees are paid for all hours worked, including
overtime.
– Explains consequences for unapproved overtime.
– Identifies software/timecards.
Timekeeping

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 Not required for adults or minors:
– Idaho law does not require employers to give breaks or meal
periods. Employees would only be entitled to breaks if it is the
employer's policy to provide them.
– Note that the FLSA governs the hours that minors may work,
but does not mandate rest or meal breaks.
Meal and Rest Periods

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 The FLSA requires covered employers to provide reasonable
break time for employees who are nursing or breastfeeding
mothers to express breast milk.
– Employers with fewer than 50 employees are not subject to the
FLSA break time requirement if the employer can demonstrate that
compliance with the provision would impose an undue hardship
Lactation Breaks

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 Travel and Business Expense Reimbursement Policy
 Tuition Reimbursement Policy
 Employee Referral Policy
Other Miscellaneous Compensation-
Related Provisions

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 One of the most important functions of a handbook is to:
1. Set out your Company’s expectations for its employees; and
2. Explain the consequences for failure to follow Company
policies.
 NOTE – none of these “On the Job” Policies are required
by federal or Idaho state law. They are just good practice.
“On the Job” Policies

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 Attendance Policy
– Partial or full-day absences?
– Emergencies
– Excused v. unexcused
 Standards of Conduct
– If you have take corrective action against an employee, the
standards of conduct policy can serve as a neutral resource to
demonstrate that the employee was aware that certain
contested conduct was prohibited.
“On the Job” Policies

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 Performance Review Policy
– Help employees understand how your organization structures
its review process and what is expected with respect to
employee performance accountability.
– Be careful with wording, include disclaimers.
 Dress Code and Grooming Policy
– May vary by job classifications, e.g., employees working in the
warehouse section v. front office
– Keep general, and make consistent with business necessity.
“On the Job” Policies

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 Solicitation and Distribution
 IT Resources and Communications Systems Policy
– Employees' improper and inappropriate use of an employer's IT
resources and communications systems carries various legal
risks for the employer such as:
• potential unauthorized disclosure of confidential and proprietary
information
• employee harassment
• privacy violations.
“On the Job” Policies

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 Bring Your Own Device to Work Policy
– Reimbursement
– Use during working or nonworking hours
– Accessing company IT systems
 Social Media Policy
– Reference and incorporate other policies in the handbook:
• IT resources and communications systems
• Non-discrimination and anti-harassment
• Confidentiality agreements
“On the Job” Policies

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 Code of Ethics/Conflict of Interest Policy
 Outside Employment Policy
– Second jobs, volunteer activities.
– Outside employment must not interfere with the employee's work
performance or work schedule.
– Use of employer resources
– Non-competition agreements
“On the Job” Policies

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 Telecommuting Policy
– Permission to telecommute can be withdrawn at any time.
– The agreed-upon hours of work and how hours will be
recorded.
– Expectations regarding how frequently you and your supervisor
will communicate (e.g., daily phone calls/weekly status
reports/in-office visits).
 Flexible Work Schedule Policy
“On the Job” Policies

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 Company Car Policy
– Insurance, criminal record,
passengers
 Romance in the
Workplace Policy
 Nepotism Policy
“On the Job” Policies

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 ALL employers have a duty to provide a safe working
environment under the federal Occupational Safety and
Health Act (OSH Act),
 OSH Act covers any entity or organization that has at least
one employee, including non-profit organizations.
– The OSH Act defines an "employer" as a person engaged in
interstate commerce who has employees .
– "Person" is defined as "one or more individuals, partnerships,
associations, corporations, business trusts, legal representatives,
or any organized group of persons"
Health & Safety

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 Health and Safety in the Workplace Policy
– Create and maintain a safety conscious culture
– Comply with OSH Act recordkeeping requirements
 Smoke-free Workplace Policy
 Substance Abuse in the Workplace Policy
– Work-sponsored events
– Company vehicles
Health & Safety

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 Drug Testing in the Workplace Policy
– Very state-specific. Be careful if you have employees in several
states.
 Workplace Searches Policy
 Workplace Violence Policy
– OSHA recommends a zero-tolerance policy
– Concealed carry law in Idaho
– Firearms stored in private vehicles and parked on company
property.
Health & Safety

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 Briefly mention benefits to their employees such as health
insurance coverage and 401(k) retirement plans.
– Avoid triggering ERISA compliance obligations.
 Rules governing certain benefits are complex, and details of a
benefit program can change, an employer should:
– Refer employees to the benefit plan documents for specific details.
– Remind employees where these documents are located, for
example, on the intranet.
– State that benefit plan documents are controlling.
Employee Benefits

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 Idaho law does not require employers to provide
employees with vacation benefits, either paid or unpaid.
– If an employer chooses to provide such benefits, it must comply
with the terms of its established policy or employment contract.
Time Away from Work & Employee Leave

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 Utah law does not require employers to provide
employees with sick leave benefits, either paid or unpaid.
– If an employer chooses to provide sick leave benefits, it must
comply with the terms of its established policy or employment
contract.
– Employers may still be required to provide an employee unpaid
FMLA sick leave.
Time Away from Work & Employee Leave

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 Utah law does not require private employers to provide employees with
either paid or unpaid holiday leave.
• Employers typically designate paid Company holidays.
• In Idaho, a private employer can require an employee to work holidays.
• A private employer does not have to pay an employee premium pay, such as
1½ times the regular rate, for working on holidays, unless such time worked
qualifies the employee for overtime under standard overtime laws.
• If an employer chooses to provide either paid or unpaid holiday leave, it must
comply with the terms of its established policy or employment contract.
Holidays

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 Vacation days and sick days v. PTO
 Policy should explain:
– Process for requesting approval of vacation days;
– Process for notifying you if employee must take a sick day.
– Whether vacation/sick days or PTO may be carried over from
year to year.
– Whether Company pays out any unused but accrued vacation
or sick days on termination and the conditions under which an
employee can receive payment.
Vacation and Sick Days

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 Leave Sharing and Vacation Donation
– Leave-sharing programs generally allow employees to donate
some or all of their accrued but unused vacation, sick days or
other paid time off to a paid time off or leave-sharing "bank"
that other employees can draw from in certain circumstances.
 Bereavement Leave
Time Away from Work & Employee Leave

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 Family and Medical Leave (FMLA) Policy
– Employers covered must include a general notice explaining the
FMLA's provisions in their employee handbook
• See 29 C.F.R. § 825.300.
– Employers should ensure that the policy accurately provides which
category of employees are eligible for leave and the requirements
that need to be met for such eligibility.
– An employer who misrepresents information about an employee's
eligibility in FMLA leave in its employee manual may be liable for
FMLA interference under an equitable estoppel theory.
FMLA Leave

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 Pregnancy and Parental Leave
– Allows employees to be absent from work:
• To care for a newborn child;
• To Care for a new adopted or foster child;
• Due to a pregnancy-related condition.
– Include a statement that Company provides pregnancy and
parental leaves of absence to all eligible employees in
accordance with the Family and Medical Leave Act (FMLA),
Pregnancy Discrimination Act (PDA), Americans with
Disabilities Act (ADA) and any applicable state law.
Pregnancy and Parental Leave

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 All US employers must provide military service leave to
employees under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA).
• Military service leave can be unpaid.
• Military service leave can include differential pay.
• Military service leave can allow eligible employees to continue to
receive base pay, or use unused vacation/sick time.
 Employers must also reemploy employees who have
taken military leave.
Military Service Leave

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 Jury Duty Leave
– Required under Idaho Code § 2-218
– May be unpaid, unless you are a state employee (see ID Admin.
Code Sec. 15.04.01.250.08).
– An employer may not require an employee to use annual, vacation,
or sick leave for:
• Responding to a summons for jury duty.
• Time spent participating in the jury selection process.
• Time spent actually serving on a jury.
Additional Time Away from Work Laws

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 Subpoena, Witness, and Victims of Crime Leave
– An employee may take leave from her employment to attend a
deposition or hearing in response to a subpoena
Additional Time Away from Work Laws

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 Voting Leave
– Idaho does not have a law which requires an employer to grant
its employees leave, either paid or unpaid, to vote.
Additional Time Away from Work Laws

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 These are important!
– minimize the potential for employees to later claim ignorance of
a policy as an excuse for non-compliance
– particularly when non-compliance leads to termination of
employment or another kind of adverse employment action.
Employee Handbook Acknowledgment

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 What to Do if an Employee Refuses to Sign an
Acknowledgment
– Ask the employee to write "I refuse to sign this acknowledgment"
and the date in his own handwriting on the acknowledgment.
• If an employee later challenges receipt of the handbook, the employee's
statement is helpful evidence for the employer.
Employee Handbook Acknowledgment

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 What to Do if an Employee Refuses to Sign an
Acknowledgment
– If an employee will not write that he refuses to sign the
acknowledgment, the employer should have the primary contact
for handbook distribution or posting write "I gave [EMPLOYEE
NAME] a copy of the handbook on [DATE]. [EMPLOYEE NAME]
refused to sign the acknowledgment."
Employee Handbook Acknowledgment

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 What to Do if an Employee Refuses to Sign an
Acknowledgment
– Best practice is to have another employer representative present
to witness the employee's refusal and the statement from the
individual who distributes the handbooks.
– The witness should also sign the refusal to acknowledge letter.
Employee Handbook Acknowledgment

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Questions?

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 Maria O. Hart
208.562.4893
mhart@parsonsbehle.com
Thank You