Navigating Employee Handbook Hot Spots
By Laurie Martin
- Does your company have a social media policy?
- Is your employee handbook compliant with recent amendments to the Americans with Disabilities Act (“ADA”) and Family and Medical Leave Act (“FMLA”)?
- Does your company’s anti-harassment policy cover non-sexual harassment?
- Does your company’s progressive discipline policy modify the at-will employment relationship?
If you don’t know the answers to these questions—or if your response is “We have a handbook?”—then pull that dusty binder off the shelf or root through the bottom drawer of your file cabinet for your company’s handbook, because it might be overdue for a review.
Out-of-date, ambiguous, or inconsistently enforced policies and procedures not only increase the likelihood that your company could become the target of an employment-related lawsuit, but also make it more difficult to defend against litigation that does arise.
A handbook is a resource for employees and management, should serve your organization’s needs, and should also be a tool for litigation avoidance and defense. Proper research, careful drafting, and consistent enforcement are imperative to help ensure that your handbook serves each of these important functions.
Policies that directly affect compliance with state and federal employment laws should be considered mandatory—think Equal Employment Opportunity and anti-harassment policies—but others are left to your company’s discretion. Policies must be clear and detailed enough to be useful. Would your attendance policy and record-keeping be sufficient to show that excessive absenteeism was the legitimate reason for terminating an employee claiming discrimination?
Consider the size, structure, and enforcement capabilities of your organization before implementing a policy that may be difficult to administer. It may be better to have no policy than one that is inconsistently enforced. Finally, after revisions are made, ensure that employees are given a copy of or access to your company’s new and improved handbook, and retain each employee’s signed acknowledgement of receipt in their personnel file.
Consider the following legal “Hot Spots” in your next handbook overhaul:
- Avoid unintentional employment contracts. Progressive discipline policies, probationary periods for new hires, and occurrence-based attendance policies—although each may be important to your company—are arguably inconsistent with at-will employment. Draft carefully to ensure that neither the handbook as a whole nor any individual provision creates an unintentional employment contract.
- Keep up with the law. Does your ADA policy prepare managers and employees to deal with the amendments recently clarified by the EEOC’s final regulations? Does your FMLA policy cover military leave? Does your COBRA policy comply with the modifications implemented by the American Recovery and Reinvestment Act of 2009? Is your handbook in line with recent Indiana Code amendments regarding employees’ possession of firearms in locked vehicles while parked on company property? Review your company’s policies in light of these and other changes in the law to determine whether your policies are up to date.
- Harassment is not just sexual. An effective anti-harassment policy should define both sexual and non-sexual harassment as prohibited conduct. See 29 C.F.R. § 1604.1(a) at n.1 (2003). A clear complaint process, protection from retaliation, and assurances of prompt, thorough, and impartial investigation (regardless of whether a complainant files an EEOC claim) are just a few of the other necessary elements.
- The National Labor Relations Act (“NLRA”) applies to non-union employers, too. Seemingly non-controversial confidentiality and social media policies of non-union employers can violate the NLRA if they could be construed to restrict employees’ discussion of wages and other terms and conditions of employment. See Cintas Corp. v. N.L.R.B., 344 N.L.R.B. 943, 943 (2005), enforced, 482 F.3d 463 (D.C. Cir. 2007).
- Craft leave policies carefully. The medical leave representations in your handbook may give an employee the right to FMLA-equivalent leave regardless of his statutory ineligibility. See Peters v. Gilead Sciences, Inc., 533 F.3d 594, 600 (7th Cir. 2008). Confirm whether you are a “covered employer” and whether your employees fall into the so-called “50/75 exception” before drafting or revising your medical leave policy. See 29 U.S.C. § 2611(2)(B)(ii) (creating an exception to employee eligibility if the employee works at a location where less than 50 employees are employed within 75 miles).
Don’t let your company’s employee handbook create or complicate litigation. Have your handbook reviewed for legal compliance, significant omissions, and practical advice on implementing updated policies and procedures. For more information about these issues or Hoover Hull LLP’s employment law practice, contact Laurie Martin, Alice Morical, or Andy Hull at 317-822-4400.
This article was first published in the Spring 2011 issue of the Hoover Hull LLP newsletter.