Is your employee handbook up to date? Essential components and sample policies for 2015
•Download as PPT, PDF•
4 likes•1,653 views
Exactly as it sounds, this presentation for human resources and employment law professionals covers the current issues and concerns for employee handbooks.
More Related Content
What's hot
What's hot (19)
Viewers also liked
Similar to Is your employee handbook up to date? Essential components and sample policies for 2015
Similar to Is your employee handbook up to date? Essential components and sample policies for 2015 (20)
More from Thomas Benjamin Huggett
More from Thomas Benjamin Huggett (9)
Recently uploaded
Recently uploaded (20)
Is your employee handbook up to date? Essential components and sample policies for 2015
- 1. Is Your Employee Handbook Up to Date?: Essential Components
- 2. February 18, 2015 Thomas Benjamin “Ben” Huggett Littler Mendelson, P.C. 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102 276.402.3035 tbhuggett@littler.com
- 3. Overview Why Do I Need A Handbook? Guide for Employees Guide for Managers Guide for You!
- 4. Overview Why Do I Need A Handbook? Confirms at-will relationship Communicates policy Helps ensure uniform treatment of employees
- 5. Overview Why Do I Need A Handbook? Promotes fairness in workplace Useful in litigation
- 6. Overview Why Do I Need A Handbook? Absence of a handbook will not prevent litigation Companies without handbooks are more vulnerable
- 7. What To Do Before You Prepare A Handbook
- 8. What To Do Before You Prepare A Handbook Review existing policies Ascertain current practices Determine needs & goals
- 9. What To Do Before You Prepare A Handbook Solicit input from managers Decide what works Use opportunity to change
- 10. 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
- 11. Overview of the Handbook
- 12. Overview of the Handbook - General Considerations Be Clear Be Simple Be Direct Avoid “canned” language
- 13. Overview of the Handbook - General Considerations Avoid unnecessary detail Example: • Not necessary to include job descriptions Update handbook regularly!
- 14. Overview of the Handbook – Welcome Message Introduction –Describe purpose of handbook
- 15. Overview of the Handbook - Welcome Message Avoid promises Consider and do not contradict other handbook language Consider all possible interpretations Preserve at-will relationship
- 16. 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.”
- 17. 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?
- 18. 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
- 19. 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
- 20. 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
- 21. 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.
- 22. 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!
- 23. The National Labor Relations Board (NLRB) And Your Handbook
- 24. 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.
- 25. What is the NLRB? National Labor Relations Board Enforces the National Labor Relations Act It has aggressively issued opinions addressing employment policies
- 26. 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.
- 27. 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
- 28. 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
- 29. 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;
- 30. 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; and 14.At-will disclaimers.
- 31. EEO and Harassment Policies In Your Handbook
- 32. 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
- 33. 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
- 34. 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.
- 35. Overview of the Handbook - Anti-Harassment It’s Not Just About Sex! – Prohibit all forms of unlawful harassment
- 36. 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
- 37. 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.
- 38. 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.
- 39. 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
- 40. Overview of the Handbook - Anti-Retaliation What’s the fastest growing employment claim? Retaliation!
- 41. Overview of the Handbook - Anti-Retaliation Prohibit retaliation – by anyone – against employees who complain of unlawful harassment or discrimination Include internal complaint procedure
- 42. Overview of the Handbook - Harassment/Retaliation Policies Prohibit retaliation against employees who participate in investigations of harassment or discrimination
- 43. 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.
- 45. General Provisions Application policies – Application data must be truthful •Include in handbook?
- 46. General Provisions Workplace Safety – Affirm commitment to safety – Encourage employees to report unsafe conditions – Require employees to report work-related injuries
- 47. General Provisions Workplace Violence What 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?
- 48. 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
- 49. General Provisions Emergency Evacuations and Closings Who should be notified of emergencies? What are the emergency procedures? – Where can they be found?
- 50. General Provisions Employment Eligibility & Verification – Compliance with Immigration Reform and Control Act (IRCA)
- 51. General Provisions Nepotism/Fraternization – Will Nepotism be permitted? – Will Fraternization be permitted? – Limits? •Direct reporting relationships? •Same department?
- 52. General Provisions Open-Door Policy/Complaint Procedure – Encourages ideas and suggestions – Promotes open communication – Fosters team environment – Improves morale
- 53. Wages, Hours, and Time-Off Provisions
- 54. Wages, Hours, and Time-Off Wages – Employee Classifications •Define - for example: – Full-time – Part-time – Temporary – Exempt •Ensure conformity with benefits plans!
- 55. Wages, Hours, and Time-Off Wages – Workweek (e.g., Mon. to Sun.) – Meal & Rest Periods •Breaks •Length? •Paid?
- 56. Wages, Hours, and Time-Off Wages – Recording hours •How? Manual recording? – State payday in writing – Frequency of pay
- 57. Wages, Hours, and Time-Off Wages – Direct deposit •Must have advance, written consent – Safe harbor (FLSA) •Written complaint procedure •Helps maintain exempt status
- 58. Wages, Hours, and Time Off Hours – Normal Company day •Define – Overtime •State when it is ok to work OT •Prohibit unauthorized OT
- 59. Wages, Hours, and Time-Off Time Off – Notify employees in writing of policies on: •Hours •Holidays •Sick Leave •Personal Leave •Vacation
- 60. 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?
- 61. 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?
- 62. Wages, Hours, and Time Off Time Off – Philadelphia allows victims of domestic violence to take time off
- 63. 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
- 65. Benefits Provisions Why refer to benefits? What types of benefits? – Medical – Dental – Vision – Flexible Spending Accounts – Workers’ Compensation (mandatory)
- 66. 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
- 67. Benefits Provisions Employee Assistance Program (EAP) 401(k) Life Insurance Education Assistance Employee Referral Bonuses COBRA
- 69. Performance Provisions Personnel Files – Access? – Required by law? Performance Reviews – When? – How? Wage Adjustments
- 71. 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
- 72. 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
- 73. Standards of Conduct Appearance/Dress Necessary? 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
- 74. Standards of Conduct Drugs & Alcohol What is prohibited? Right to search? – Where? Right to test? – Under what circumstances?
- 75. Standards of Conduct No Smoking Prohibited on premises? Off-duty?
- 76. Standards of Conduct Solicitation Restrictions By 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
- 77. Standards of Conduct Confidential Information Define Prohibit unauthorized use/disclosure Separate agreement? Consult legal counsel
- 78. Standards of Conduct Use of Company Property What property? – Work and storage areas – Computer and fax systems – Cell phones, pagers, and PDAs – Digital cameras
- 79. 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.
- 80. 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.
- 81. 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.
- 83. Termination Provisions Voluntary/Involuntary Confirm at-will status Voluntary: – Request notice period
- 84. Termination Provisions Exit Interview Reference in handbook puts employee on notice Generally provides opportunity to improve workplace
- 85. Termination Provisions Final Paycheck Must pay final wages no later than next business day after date on which discharge occurred.
- 86. 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
- 87. Termination Provisions Job References Who may provide them? – HR only? What may be said? – Dates of employment – Positions held? – Salary confirmation?
- 89. Miscellaneous Provisions Expense Reimbursement Transportation/lodging limitations? Deadline for submission of expenses? Required receipts? Advance authorization?
- 90. Miscellaneous Provisions Privacy Confirm no reasonable expectation of privacy Limited use of employee data
Editor's Notes
- - Don’t be bound by policies by which you did not intend to be bound - Don’t be all encompassing
- - legal requirements regarding postings – FMLA, COBRA (availability of benefits) - Can help protect against allegations such as wrongful termination, employment discrimination, or violation of right to privacy by: - Providing clarification to supervisors and managers that they must be fair and uniform in their interpretation and enforcement of personnel policies. Can limit employer liability to employees for various benefits by putting in writing the exact nature and extent of the benefits offered to all employees.
- -sets expectations -juries always want proof that an employee had notice
- -Remember once the policy is in the handbook you must comply until modified - Even if the policies do not constitute a “contract” - May be evidence of “bad faith” “malice” or “oppression”
- remember the alphabet soup from our first session Title VII /ADEA/ADA/PDA FLSA EPA FMLA USERRA Section 1981 FCRA IRCA OSHA COBRA HIPAA NLRA OWBPA DCFMLA ERISA DCHRA Workers’ Compensation
- -who is your audience? consider size of workforce, job classifications, etc. inclusion of frequently changed or changeable provisions creates administrative problems e.g. Mileage reimbursement Costs of medical benefits Pay days Date of holidays
- Must update regularly to excise invalidated provisions - provisions impacted by change in recent legal enactments Add newly required/offered provisions
- -remember there is no employment contract unless you create one
- a clear and conspicuous disclaimer will make it difficult for an employee to claim that the Company modified the at-will relationship disclaimer must, at a minimum, inform employees that the handbook does not constitute a contract and the employment relationship may be terminated at the will of either party inconsistent representations or practices, or even inconsistent promises in the same document that contains the disclaimer may make the disclaimer meaningless
- Examples of polices where contract language disclaimer should be used: -Discipline policies -Vacation policy -Insurance benefits -Sick leave -Confidential information
- useful to establish that employees had notice of policies, expectations, and prohibitions of the Company when collected and retained, can be invaluable in the defense of wrongful discharge actions by demonstrating employee’s knowledge and acceptance of the at-will employment relationship - always advisable to publish and distribute the revised handbook in advance of the effective date. -allows employees and supervisors time to digest new info and ask for clarification
- additional protected categories under the DCHRA – sexual orientation, veteran status, marital status, gender identity and expression, matriculation, political affiliation, personal appearance, family status, familial responsibilities and genetic information let employees know that Company complies with the ADA – reasonable accommodation ADAA of 2008 Genetic Information Nondiscrimination Act include a description of the Company’s internal procedure for addressing and resolving complaints of alleged discrimination
- - to avoid unintended contractual liability to exempt employees for overtime, language should clearly specify categories of employees eligible for overtime pay
- -no requirement to provide breaks breaks of 5-20 minutes are considered paid time breaks of 30 minutes or more-employee completely relieved of duties-unpaid lactation breaks – provide sanitary accommodations
- signing in and out signing timesheets
- Philadelphia Paid Sick Leave Ordinance – effective May 13, 2015 - leave, accrual, right to use it, no retaliation
- - a brief description of the reasons for leave, the requirements of leave, and the nature of leave available
- FMLA-Military Leave 26 weeks of leave in a 12-month period for a spouse, child, parent or next of kin of an active duty service member killed or injured 12 weeks of FMLA leave because of a qualifying exigency related to a spouse, son, daughter or parent being on active duty DC – no requirement to allow time off to vote
- PA employee in the private sector has a right to review personnel file
- inform employees regarding Company’s expectations as to behavior in the workplace avoid creating an expectation of advance notice of termination
- Medical Marijuana
- - must be carefully drafted to avoid running afoul of the National Labor Relations Act even in nonunionized workplaces
- -Confidentiality can often be over inclusive, as well as under inclusive - Some of the most over-inclusive errors are provisions relating to what subjects employees may discuss, e.g. provision prohibiting discussion of wages may be in violation on National Labor Relations Act