The federal government’s focus on deregulation combined with active state legislatures and municipalities mean a cookie-cutter employee handbook isn’t a realistic option for employers. Handbooks should be reviewed regularly to ensure compliance with ever-changing workplace law, employment attorneys told SHRM Online.
“The end of the year is a wonderful time to assess the handbook, especially this year with changes afoot in Washington,” said Jeffrey Pasek, an attorney with Cozen O’Connor in Philadelphia.
Not a lot is happening at the federal level yet, as key agency positions still need to be filled. However, President Donald Trump’s administration will likely scale back on prior rules. In the meantime, states are moving forward with legislation and regulations to fill perceived gaps, said Bonnie Martin, an attorney with Ogletree Deakins in Indianapolis.
Companies should be particularly attentive to state and local laws on leave entitlements, background checks, and wage and hour requirements, as well as newer areas including marijuana and other drug-related laws and guns in the workplace, Martin said.
Here are some of the key issues employers should monitor in 2018 that may trigger a handbook update.
1. Workplace Conduct and Social Media
With a Democratic majority under President Barack Obama, the National Labor Relations Board (NLRB) scrutinized social media policies and other workplace conduct standards that could have limited workers’ right to engage in protected concerted activity.
The pendulum is expected to swing the other way under President Donald Trump, said Bruce Sarchet, an attorney with Littler in Sacramento.
For example, the board’s new general counsel, Peter Robb, issued a memorandum rescinding prior memos that led to the board’s close scrutiny of handbook and policy provisions. Already, the board has overruled a previous standard striking down employer policies if they could be “reasonably construed” to curb employee discussions about wages and working conditions—even if the policies weren’t intended to do so. The board’s new standard will consider whether the employer has a legitimate justification for the rule.
“With [the] signal of a sea change in NLRB policy, employers need to pay close attention to the board’s new ‘policies on policies’ as they develop,” Martin said.
2. Arbitration Agreements
Employers should pay close attention to the pending federal cases relating to the enforceability of arbitration agreements and class-action waivers to make sure their handbooks comply with the relevant rulings, Martin said.
The law in this area is in a state of flux, but a ruling from the U.S. Supreme Court should be coming soon. Sarchet noted that revising handbook policies on arbitration now might be premature. “Employers may want to wait to see how the Supreme Court rules on the issue.”
3. Sexual Harassment
Sexual harassment news has swept across the country as leading men in Hollywood and politics have been ousted due to a flurry of allegations. Therefore, it’s a good time for HR professionals to take a look at their anti-harassment policies and procedures to make sure they’re up to par.
Policies need to adequately tell employees how to register a complaint, and they need to give workers multiple outlets for complaining, said Randi Kochman, an attorney with Cole Schotz in Hackensack, N.J. “Having a policy that requires employees to report incidents to their supervisor isn’t helpful if the supervisor is the one doing the harassing.”
State requirements must be taken into account as well. In 2017, these states revised sexual harassment training requirements:
- California. The state has expanded current supervisor training requirements. Covered employers must add to their harassment prevention training content on harassment based on gender identity, gender expression and sexual orientation. The training and education must include practical examples inclusive of harassment based on gender identity, gender expression and sexual orientation, and must be presented by trainers or educators with knowledge and expertise in those areas. The amendments took effect on Jan. 1, 2018.
- Maine. Effective Nov. 1, 2017, Maine’s amended sexual harassment training law requires employers in the state with 15 or more employees to use a compliance checklist provided by the state’s Department of Labor to develop a sexual harassment training program and keep a record of any training conducted for three years. The amended law also establishes the penalties an employer may face for failing to comply.
4. Parental Leave
States are starting to expand their parental leave laws. In California, for example, businesses with 20-49 employees will need to offer job-protected baby-bonding leave starting in 2018. Larger businesses already fall under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act. California also increased state paid-family-leave insurance benefits and will eliminate the one-week waiting period for claims.
In New York, many employees will be eligible to take paid family leave beginning in 2018. Even in states without generous leave laws, many businesses offer paid leave as a benefit.
Related policies shouldn’t have separate baby-bonding rules for mothers and fathers, Kochman said. She noted that employers can have separate standards for mothers during the time they are disabled by pregnancy, but parental leave policies should use terms like “primary caretaker” and “secondary caretaker.” These policies and practices should be reviewed in conjunction with FMLA guidelines for larger employers.
5. Disability and Other Accommodations
Employers need to understand that their obligation to provide leave could go beyond the 12 weeks afforded under the FMLA, Kochman said. For example, a request for intermittent leave to treat a medical condition may be a reasonable accommodation under the Americans with Disabilities Act (ADA).
The 7th U.S. Circuit Court of Appeals recently ruled that, while the ADA may require brief periods of leave, an extended leave of absence beyond FMLA time isn’t a reasonable accommodation. However, the Equal Employment Opportunity Commission and other courts disagree with the 7th Circuit. Therefore, employers should carefully review their policies and keep up with developing laws in this area.
Medical marijuana case law is also evolving. In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs because of their medicinal use could bring claims under state disability laws.
“HR professionals should review their drug-testing policies and practices and consider consulting counsel before taking any adverse action following a positive drug test for marijuana in a state in which medical or recreational use is legal,” said Cheryl Orr and Irene Rizzi, attorneys with Drinker Biddle in San Francisco, in an e-mail to SHRM Online.
Lactation and pregnancy accommodation requirements have also passed in some jurisdictions, such as San Francisco, Connecticut, Massachusetts, Nevada, Vermont and Washington state.
The Bigger Picture
With all the state and local changes, it may no longer be effective to have one handbook that is applied throughout the states, Pasek said. Employers don’t want a nationwide handbook that has 50 different leave laws, for example, because it’s confusing and overwhelms the process. “Now is a good time to add state supplements to the handbook that are distributed only to employees within the relevant state,” he said.
[SHRM members-only multistate coverage: Multistate Employer Resources]
HR professionals should ask themselves what the purpose of the employee handbook is and what essentials should be included. Otherwise, the handbook could start to mimic a code of regulations, Pasek said.
A solid handbook will include equal employment opportunity policies and internal complaint procedures; legally required policies, notices and disclaimers; and likely an employment-at-will statement. Other provisions may depend on the specific employer, the state and the handbook’s purpose.
Regardless of what the handbook includes, HR professionals need to be on the lookout for changes at the federal, state and local levels. “Now, more than ever, human resource professionals need to stay abreast of fast-moving changes in employment law through continuing education,” Martin said.
By Lisa Nagele-Piazza, SHRM-SCP, J.D., and Beth Zoller, J.D. Jan 2, 2018
Lisa Nagele-Piazza, SHRM-SCP, J.D., is SHRM’s senior legal editor. Beth Zoller, J.D., is a legal editor with XpertHR.