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Your handbook may need a serious check-up

May 18, 2016

Article courtesy of SBAM Approved Partner ASE
Author: Anthony Kaylin

For organizations of all types and sizes, both union and non-union, there has never been as much government activity affecting the handbook policy space as there is today. The various federal agencies (NLRB, DOL, EEOC, OSHA) as well as individual states, have been moving on employment policy issues like Olympic athletes overdosed with adrenaline. Their pace has been frenetic. Employee handbooks that have not been substantially revised in several key areas risk not only becoming useless to employers in a lawsuit, but also becoming potent offensive tools in the hands of aggressive plaintiff attorneys.

The following is just a sampling of policies that employers should review:

At-Will Employment: In a case before an NLRB administrative law judge, it was held that an employer’s requirement that an employee sign an acknowledgment that the employee’s at-will status “could not be amended, modified or altered in any way” was unlawful because “[c]learly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights” to engage in protected concerted activity.

The following statement though has been found passing by the NLRB.

“Employment with employer is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of employer has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the employer has the authority to make any such agreement and then only in writing.”

If the handbook’s at-will statement hasn’t been updated, it is a good place to start.

Protected Concerted Activity: The NLRB has interpreted this term so broadly that if an employee bad-mouths the employer on a social media page and another employee somehow implicitly agrees (whatever “implicitly agrees” means), an employer cannot terminate the employee for violation of its social media policy. The following are examples of social media policies found unlawful by the NLRB because of their potential effect on “protected concerted activity”:

  • Employees should not release confidential guest, team member or company information.
  • Employees should not share confidential information with coworkers unless they need the information to do their job.
  • Employees should not have discussions regarding confidential information in the break room, at home, or in open public places.
  • Employees should not “reveal non-public company information on any public sites.”
  • Employees should not make “offensive, demeaning, abusive or inappropriate remarks online” 
  • Employees should not make “disparaging or defamatory” comments.

This list has the potential to be endless.  So much has been written on social media policies, yet the same issues seem to arise quite often, especially by non-union employers.    And employees are becoming more sophisticated, going directly to the NLRB for help.  For employers, the NLRB’s guidance is a fairly benign policy recommendation and not really helpful.

Anti-retaliation: Retaliation is the most common charge before the EEOC today. Earlier this year the EEOC published a new, much broader, proposed guidance on retaliation as . . .

. . . encompassing internal EEO complaints to company management, Human Resources or otherwise made within an employer’s internal complaint process before a discrimination charge is actually filed with the EEOC or a state or local Fair Employment Practices Agency . . .  

. . . or even being a witness to an investigation. Under this proposed guidance, employers may have to guess when employees are complaining (e.g., a shrug of the shoulders? a rolling of the eyes?) to an employer behavior. The final version of the guidance is still waiting to be published.

Attendance Policies and the ADA: Both the EEOC and OFCCP are stating that once FMLA leave ends, extending the leave may be a reasonable accommodation. Even if the employee has no FMLA rights, additional time off through a personal leave policy may be reasonable under the circumstances. In addition, the EEOC, and presumably the OFCCP, has ammunition to support the same type of response for pregnant women and their needs for leave.

Other Policies: There are a number of other policies you should review including, but limited to, Confidentiality, Harmonious Environments, Electronic Communications, Internal Investigations, Pay Disclosure (which also impacts managers), Bathroom Access, Whistleblowing and Paid Sick Leave. Failure to work with legal counsel to update these policies will lead the organization to a precarious situation if the government comes a-knocking.

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