Why Have A Handbook At All?

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1 Why Have A Handbook At All? To help explain and guide management and employees regarding job requirements and expectations, and to encourage consistency It s expected by the courts, the EEOC, departments of labor, administrative agencies, and juries To standardize rules across multiple facilities and to create best practices for others to follow 1

2 The NLRA The Basics Covers most private sector employees Covers non-supervisors Establishes processes and rules for unionization Establishes protected rights (union and concerted activity) and processes for investigating and resolving disputes Establishes the NLRB A Quick History of the NLRB National Labor Relations Board ( ) No Longer Relevant Board ( ) No Longer Reasonable Board (2010-Present???) So What Does This Have To Do With My Handbook? Expanded notion of Protected Concerted Activity Handbooks Policies Practices (e.g., workplace investigations) Mere existence is a problem 2

3 Dress Code Boch Imports, Inc. (2014) ALJ found a dress code provision which banned employees who dealt with the public from wearing insignias and other message clothing to violate Section 7. Healthbridge Management (2014) NLRB held hospital ban on pro-union buttons even in patient care areas was invalid absent special circumstances. Ban On Photography Giant Foods (March, 2012) Rule prohibiting employees from photographing or videotaping the employer s premises is illegal. It can be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures and videos, such as employees engaged in picketing or other concerted activities. Flagstaff Medical Center (August, 2011) Employees prohibited from photographing hospital patients or property. Validity of rule upheld member dissented and said the ban was overly broad. Bottom Line on the Photo Ban An employer must have a compelling legal or business reason for banning photos or videos in order to outweigh Section 7 rights. Example: Employees may not take photographs of areas containing trade secrets and other proprietary information 3

4 Rules Prohibiting False Statements, Derogatory Attacks Southern Maryland Hospital (1989) Rule prohibiting derogatory attacks on... hospital representative[s] found unlawful. Lily Transportation Corp. v. Suchar (2014) A rule warning workers to refrain from posting certain information and comments about Lily on the Internet and stating Lily would hold people accountable for any disparaging, negative, false or misleading information or comments, clearly chilled employees with respect to the exercise of their NLRA-protected rights. Rules Against Gossip Laurus Technical Institute (Dec., 2013) Gossip defined as,... talking about a person s personal life when they are not present; talking about a person s professional life without his/her supervisor present; making negative, or untrue, or disparaging comments or criticism of another person; and creating, sharing, or repeating information that can injure a person s reputation, a rumor about another person, or a rumor that is overheard or hearsay. Rule precluding same found unlawful. Legal or Illegal? Bob is such a NASTY MOTHER F@CKER. F@ck his mother and his entire f@cking family!!!!! Vote YES for the UNION!!!!!!! NLRB v. Pier Sixty, LLC, April 21, 2017 F**k you and f**k this job! (said by employee to manager) Harbor Rail Services Co., April 28,

5 Policy: Don t Talk To The Media DirectTV (January, 2013) The employee handbook instructed employees to simply not contact the media. The Board found that the absolute bar of media communications was clearly overly broad and illegal. Employment at Will Language I further agree that the at-will employment relationship cannot be amended, modified or altered in any way. ALJ found that the signing of the acknowledgment form, whereby the employee through the use of the personal pronoun I specifically agreed that the at-will agreement could not be changed in any way, was essentially a waiver of the employee s right to advocate concertedly... to change his/her at-will status. Employment at Will Language Rocha Transportation (Oct. 13, 2012) Language held legal: No manager, supervisor, or employee of Rocha Transportation 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 Company has the authority to make any such agreement and then only in writing. 5

6 Confidential Information Kroger Co. of Michigan v. Granger (2014) Rule prohibiting comment on rumors or speculations related to the company s business plans would be understood to cover a range of issues like closures and layoffs. Quicken Loans (June 2013) Employer could not bar employees from revealing personnel information including personnel lists, rosters, home phone numbers, cell phone numbers, addresses and addresses. Requiring Confidentiality of Workplace Investigations Blanket prohibition illegal the Board held in Banner Health Systems (2012), that employers may not maintain a policy prohibiting employees from discussing on-going investigations of employee misconduct. Bottom Line on Confidentiality Define what constitutes confidential information, and do not include personnel data, wages, benefits, etc. in the definition. Limit confidential information to protected health information, proprietary and truly business-related items (such as trade secrets) that do not involve terms and conditions of employment. 6

7 Use of Company Computers Walking off the job Class waivers in arbitration agreements? Taking Trouble to the Next Level Social Media Policies 7

8 Problem Policy: Ban On Disclosing Company Information Online DIRECTV (Jan., 2013) NLRB found that DirectTV maintained an overbroad and unlawful policy that informed employees they may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record. The phrase company information would reasonably be read by employees as including employee records, which would include information about their own wages, disciplinary actions, and employee ratings, or those of other employees, the Board said. Non-Disparagement Bans Quicken Loans (June, 2013) The Board found that the financial institution s nondisparagement provision would have a chilling effect on the Section 7 rights of employees in that it barred employees from publicly criticizing, ridiculing, disparaging or defaming Quicken Loans or its products, service and policies.... More Problems Online Prohibition of discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites. Requiring employees identify themselves at all times You must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site. 8

9 The FLSA Wage/Hour laws covering overtime, minimum wage, and other pay practices. How Does This Relate To Your Handbook? Number of FLSA lawsuits increase every year DOL Investigators, Judges, and Juries will look at your policies Payroll companies do not always understand the intricacies of your business, and your practice can be held liable for their mistakes Your policies should reflect the law, and should provide you a safe harbor in case of any mistakes. Problem Policy: Unapproved Overtime You can discipline, but you cannot deduct. Best Practice: Have written policy outlining the consequences for working unapproved overtime, and also explaining the precise way in which overtime must be approved 9

10 Problem Policy: Smart Phones and s Depending on frequency and duration, time spent checking and responding to s is probably compensable time. Best Practice: written policy prohibiting after-hours work, including s and calls. Another option: written policy requiring employees to document all time spent working from home. Educate management to try to prevent these problems. Good Policy: Time Entry Best practice: No auto-deductions for lunch breaks. Have employees enter their own time. Avoid rounding in a way that would deprive employees of ANY time worked. Some Final Tips Include complaint provisions to correct any errors in timekeeping a Safe Harbor Provision. If time is going to be changed, do so only with the employee s approval. Have employees sign off on their time records. Make certain employees are not performing work when not being paid, and train your managers to pay attention! 10

11 Some Good Policies Equal Employment Opportunity Policy Against Discrimination and Harassment (sex, gender, race, etc.; no retaliation) Workplace Violence Policy Open Door Policy Disciplinary Policy (progressive with discretion) Attendance Policy (including tardiness) FMLA (if applicable) Computer Usage and Policy Conclusion Your handbook is DEFINITELY illegal, isn t it? Review and update on an annual basis Be aware of the potential for liability Above all else evaluate your risks and strategy, and HAVE A PLAN! Questions? Cherie L. Silberman csilberman@constangy.com (813)

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