Drafting Employee Handbooks: Minimizing Exposure Risks

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Drafting Employee Handbooks: Minimizing Exposure Risks Responding to Latest NLRB Enforcement, Preserving At-Will Employment, and Avoiding Inadvertent Employee Contract Rights WEDNESDAY, NOVEMBER 19, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Lindsey M. Hogan, Esq., Faegre Baker Daniels, Chicago Mona M. Stone, Of Counsel, Greenberg Traurig, Phoenix The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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4 Drafting Employee Handbooks: Minimizing Exposure Risks Strafford CLE - November 19, 2014 Mona M. Stone Greenberg Traurig LLP stonem@gtlaw.com Lindsey M. Hogan Faegre Baker Daniels lindsey.hogan@faegrebd.com GREENBERG TRAURIG, LLP ATTORNEYS AT LAW All rights reserved. FAEGRE BAKER DANIELS, LLP 4

5 What Will You Learn Today? Introduction Importance of carefully drafting handbooks Advantages and disadvantages of handbooks Format of handbooks Key provisions in employee handbooks and special issues for multi-state employers Legal considerations NLRB issues Wage and hour considerations Contractual rights and contractual liability Social media policy considerations 5-5 -

6 Importance of Carefully Drafted Handbooks Important communication tool between you and your employees Designates company objective, core values, policies, procedures, benefits Helps orient new employees Creates standard of fairness and compliance 6-6 -

7 Importance of Carefully Drafted Handbooks Proactive business approach Instruct employees about ethical standards and code of conduct Make HR and Legal happy! Increase productivity Lower absenteeism Reduce turnover Less business disruption Fewer claims and legal headaches 7-7 -

8 Importance of Carefully Drafted Handbooks Important communication tool between you and your employees Explains applicable laws For profit/non-profit Multi-state/international companies Eliminates conflicting policies and practices Be sure to cross-reference employee handbook to other company documents (personnel policies, bulletins, benefit plans, insurance documents, etc.) Union considerations 8-8 -

9 Importance of Carefully Drafted Handbooks Protects your information and assets! Generally identify confidential business information and trade secrets Tailor according to your industry/needs (e.g., HIPAA, FERPA, compensation information) Information and equipment belong to company Explain importance of protecting this information and how it can be shared Instruct employees that equipment and information must be returned at conclusion of employment What happens if information or equipment is lost or mishandled? 9-9 -

10 Importance of Carefully Drafted Handbooks Gives employer flexibility in setting policies and procedures Only an overview Not a rigid system of discipline or comprehensive list of offenses Does not cover every scenario imaginable Overly voluminous may cause confusion Put your handbook on a diet if it is too fat! Right to amend and modify Disclaims any employee rights or benefits Disclaims contractual rights

11 Importance of Carefully Drafted Handbooks Do your homework Need buy-in from senior management Worth the $$$$ investment Requires support from all business units Train HR administrators and managers before rollout - regarding enforceability and documentation Obtain sign off from Legal

12 Advantages and Disadvantages of Handbooks Advantages: Well-drafted handbook should minimize chance for misunderstandings Chance for employees to participate Involve select staff and management Solicit feedback regarding actual operations

13 Advantages and Disadvantages of Handbooks Advantages: Set forth your expectations for your employees Describe what they can expect from your company Identify your legal obligations as an employer Explain employees' rights

14 Advantages and Disadvantages of Handbooks Advantages: Minimize or eliminate potential legal liability Ensure consistency and fairness to minimize risk of discrimination and wrongful discharge claims Act as a first line of defense against potential claims E.g., unemployment claims, EEOC Position Statement Identify and explain applicable laws Retain corporate identities (e.g., franchisor/franchisee)

15 Advantages and Disadvantages of Handbooks Disadvantages: One size does not fit all (or even most!) Forms are readily available, but Current? Relevant? Illegal? May become a crutch for employer and employees Does not eliminate need for ongoing communications

16 Advantages and Disadvantages of Handbooks Disadvantages: Need to make sure policies reflect reality Consider industry standards and best practices Ease of implementation and consistent enforcement Impacts your credibility

17 Advantages and Disadvantages of Handbooks Disadvantages: Need to train employees and ensure understanding of policies Multiple trainings may be necessary (offices, antiharassment) Need to enforce policies, and enforce them consistently Need to update policies periodically and obtain employee acknowledgement

18 Format of Handbooks Must be easy to read and understand Draft policies that are reasonable and can be equitably applied Think of least common denominator Solicit and use employee feedback

19 Format of Handbooks Make sure policies are drafted to ensure understanding by all levels of workforce Keep it short and sweet no legal jargon Use titles, rather than individual names E.g., Human Resources [instead of HR Director Betty Smith] will retain copies of employee badges. Use language that permits flexibility and discretion E.g., All employees are reviewed at the end of the fiscal year versus The Company will attempt to conduct performance reviews on an annual basis

20 Format of Handbooks Use to Promote Company List perks company provides Tell employees how to avoid disciplinary action, but also tell them how to succeed Use upbeat language: Visitors are strictly prohibited in the workplace, or To protect the security of our workforce and confidential information, all visitors must check in with security

21 Format of Handbooks Organize material with table of contents Use links in electronic copies Consider order and organization of material Use headings and section breaks Be mindful of spacing and visual appeal

22 Format of Handbooks Consider target audience Company culture Tone of content Language translations Potential claims or Exhibit A in courtroom

23 Format of Handbooks Content What would jury think? Customize policies according to business needs Size of organization E.g., Title VI (15+ employees), ADEA (20+ employees), FMLA (50+ employees) Type of industry E.g., customer service company should provide examples of importance of greeting clients when entering retail establishment Is company subject to licensing requirements, federal compliance standards, rules of ethics, etc.?

24 Format of Handbooks Proofread! Proofread! Proofread! Hard copy, electronic, or both? Timing and tactfulness is important Distribution of handbook and messaging Message from CEO/President Who will deliver? HR, legal, outside counsel? Consider test group to review and provide input Highlight changes and explain basis for revisions as necessary In person trainings New hire orientation

25 Key Provisions Privacy Protections Union considerations Privacy concerns Disclaimer (multiple places) At-will relationship Know your state s requirements

26 Key Provisions General Disclaimer Avoid language that promises or guarantees condition of employment Welcome to the company! My goal is to provide you the tools you need to succeed. Dispel employees of implied contract Use bold/highlighting Use separate non-compete, non-solicitation and confidentiality agreements and compensation packets

27 Key Provisions Acknowledgement of Receipt Handbook does not constitute a contract or implied contract Remind employees handbook is subject to change at any time, with or without notice Reserve right to unilaterally revoke, change or issue revised or new policies Obtain new acknowledgements when handbook is updated

28 Key Provisions Acknowledgement of Receipt Signed and dated by employee (e-signature) Employee aware of rules and agrees to follow Maintain signed copy in personnel file Give employee adequate time to review Identify who to turn to with questions Employer copy and employee copy

29 Key Provisions Acknowledgement of Receipt What if employee refuses to sign? Try to ascertain why Explain it is routine party of handbook distribution process Make clear all employees are asked to acknowledge receipt Describe importance of handbook in setting guidelines for efficient, daily operation of business Explain handbook identifies employer s and employee s rights and obligations Ask employee about reservations in signing and address concerns

30 Key Provisions Acknowledgement of Receipt What if employee refuses to even read handbook? Consider whether individual is good fit for organization Ability to follow rules, abide by guidelines, respect superiors and company culture? Creating exception for one may create problems for all Document employee s refusal to read handbook and/or sign acknowledgement Sign and date by HR or company representative responsible for maintaining acknowledgement forms

31 Special Issues for Multi-State Employers Conforming to multi-state laws can present challenges Medical marijuana Access to personnel records FMLA/ADA Use addendums or multiple versions if necessary Use flexible language unless otherwise required by state law

32 Legal considerations EEO Policy FMLA/ADA/Workers Compensation/PTO HIPAA and medical privacy Confidential business information Computer/internet/technology Employee searches Company equipment and return of company property

33 Legal considerations Non-Disclosure Agreements (NDAs) and Conflict of Interest Statements Anti-Discrimination Policies Leave Policies

34 NLRB & Social Media Issues

35 The NLRB and Employer Policies The NLRB s website describes the agency as an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. Enforces the National Labor Relations Act (NLRA)

36 The NLRA 7 Employees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection 8(a)(1) It shall be an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of rights guaranteed in 7 of this act

37 NLRB Expanding Its Enforcement Footprint The statutory requirements have not changed for decades it is the NLRB s enforcement activities and protocols that have changed in recent years. Focusing on Policies and Practices in the NON-UNION workplace

38 Focus On Non-Union Workplace Confidentiality Wages/Discipline/Investigations Electronic Communications Complaint Policies Class Action Waivers Dress Codes Access Rules At-Will Disclaimers Social Media Restrictions

39 Office of the General Counsel NLRB s General Counsel has issued a dozen memoranda on social media: Allegations of overbroad employer social media policies Unlawful discipline or discharge over contents of social media posts Area of heightened interest for the NLRB

40 Social Media Landscape

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42 Today Over 1.15 billion Facebook users Over 500 million Twitter users More than 225 million LinkedIn users

43 SOCIAL MEDIA STATUTORY ISSUES Potentially hundreds of federal and state laws could affect the use of social media in the workplace. The ones getting the most attention are: The Fair Credit Reporting Act Anti-discrimination statutes such at Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act General privacy rights under the First Amendment, Stored Communications Act or Federal Wiretap Act Uniform Trade Secrets Act (and non-compete/breach of confidentiality cases) The National Labor Relations Act

44 NLRA The Big One National Labor Relations Act ( NLRA ): Section 7 of the NLRA prohibits employers from enacting policies that stifle or prevent employees from engaging in concerted activity for mutual aid and protection. According to the NLRB, there are two main points to consider: Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. An employee s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees

45 Protected Activity & Social Media An employee is protected under the NLRA when engaging in a discussion of work conditions with other coworkers on social media. Examples Include: Facebook post with comments. Twitter discussion and retweets. Blogs with comments

46 Protected Concerted Activities Sharing information about wages Complaining about policies or managers Displaying union-related insignias/ logos Expressing union support Attempting to organize a union Otherwise discussing employment terms

47 Employers Headaches from Social Media Like button may be enough to trigger NLRA rights Three D LLC d/b/a Triple Play Sports (8/22/14 NLRB ) required the NLRB to determine whether the NLRA protected an employee whose only involvement in an online employee discussion of a payroll tax withholding was to click the Like button on a Facebook page. Looking at the Facebook "wall the NLRB found the employee engaged in concerted activity because the employee used the Like button to express approval of other employee complaints concerning payroll tax issues. Bobby Bland v. B.J. Roberts (9/18/13 4th Circuit): liking a Facebook post may be protected by the First Amendment

48 Employers Headaches from Social Media New York Party Shuttle, 02-CA (May 13, 2013) (Facebook posts directed at non-employees of the Employer that criticized the Employer s employment practices were deemed to be union activity). Design Technology Group, 02-CA (October 31, 2014) (Facebook posts criticizing the employees supervisor and resembling griping were an extension of the employees earlier conversation based on safety concerns and constituted concerted activity)

49 Employers Headaches from Social Media Cont. Ade v. Kidspeace Corp., 698 F. Supp. 2d 501 (E.D. Pa. 2010) (fired employee sued employer for failing to discipline another employee for sending sexually explicit messages to a co-worker through MySpace). But see Tasker Healthcare Group, CA (May 8, 2013) (employee s comment on Facebook that she told her supervisor to back the freak off was not protected speech)

50 Avoiding the Headaches: Drafting Enforceable Social Media Policies GREENBERG TRAURIG, LLP ATTORNEYS AT LAW All rights reserved. FAEGRE BAKER DANIELS, LLP 50

51 A Social Media Policy Should: Clarify scope by including examples of impermissible or unprotected conduct (i.e., use limiting language ) Avoid ambiguity as to application to Section 7 activity Utilize quotes from policies deemed lawful Require employees to maintain confidentiality of trade secrets and confidential information

52 Be Specific Target specific behaviors violating policy Less is more Don t require advance permission Narrowly focus on unprotected behavior Flawed policy: Costco s policy barring statements harming Company reputation employees could read as a ban on protesting employee treatment. Acceptable policy: Wal-Mart s policy limited its prohibition to malicious or obscene comments

53 Give Examples Broad categories of prohibited or required conduct will draw scrutiny Avoid ambiguities and be specific Give concrete examples related to business products, trade secrets, etc. Reserve right to take disciplinary action Acceptable policy: Cox Communications policy containing list of plainly egregious conduct such as vulgar, obscene, harassing, libelous or discriminatory comments

54 Egregious Misconduct Can Be Prohibited Discriminatory or disparaging remarks Bullying, harassment or retaliation Threats of violence Representing an opinion as official policy Disclosing confidential trade secrets Development of systems, processes, products, know-how and technology Disclosing secret, privileged information Copyright infringement

55 But Not All Unwanted Conduct Can Be Making misleading or inaccurate posts Revealing non-public company information Non-commercial use of logo Offensive or disparaging comments Friending co-workers without permission Commenting on legal matters Use of improper tone Refusal to resolve concerns internally Contacting government without authorization

56 Consider A Disclaimer GC says a savings clause will not fix an otherwise overbroad policy, but Board decisions suggest such clauses could still make a difference Effective if well-written, but will not cure otherwise unlawful policy Use understandable terms (plain English) Identify the activity that is being saved

57 Unlawful Policies The NLRB found to be unlawful: A social media policy that prohibited: (1) unauthorized posting or distribution of papers and (2) using social networking sites in a manner that could discrete or damage the employer. The NLRB felt that this allowed employees to reasonably interpret the rule to prohibit protected concerted activities and any rule that requires employees to secure permission from their employer before engaging in protected concerted activity at an appropriate time and place is unlawful. The General Counsel of the NLRB found to be unlawful: A social media policy that provided no guidance on what constituted the prohibited inappropriate postings on social media sites. The NLRB felt that this allowed employees to reasonably interpret the rule to prohibit protected concerted activities

58 Unlawful Policies Cont. A work rule prohibiting inappropriate conversation, whether in person or online, was unlawful when it provided no guidance on what constituted the prohibited "inappropriate conversation. A company policy that prohibited employees from disclosing or communicating information of a confidential, sensitive, or non-public nature using company resources to those outside the company was unlawful when it failed to give examples of such violations

59 Unlawful Policies Cont. Two policies prohibiting employees from making disparaging comments about the company or from engaging in unprofessional conduct online were found to be unlawful when the NLRB felt such policies would reasonably tend to chill employees in the exercise of their Section 7 rights

60 Lawful Policies The NLRB found lawful a policy that prohibited the use of social media to post or display comments about co-workers, supervisors, or the employer that were vulgar, obscene, threatening, intimidating, harassing, or in violation of the employer s anti-discrimination and antiharassment policies. The NLRB stated that forbidding statements which are slanderous or detrimental to the company that appeared on a list of prohibited conduct including sexual or racial harassment and sabotage would not be reasonably understood to restrict Section 7 activity

61 Lawful Policies Cont. The NLRB also found lawful a policy that required employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws. The NLRB stated that employees would reasonably interpret the rule to address only those communications that could implicate security regulations

62 Lawful Policies Cont. The NLRB also found lawful that company s policy prohibiting employees from using or disclosing confidential and/or proprietary information, including personal health information about customers and patients. The NLRB stated that employees would reasonably understand that this rule was intended to protect the privacy interests of the Employer s customers and not to restrict Section 7 protected communications

63 Language To Avoid Restricting wage/discipline discussions Outright prohibition on use of company name/logo Mandatory advance approval language Prohibiting general discussions with media Using generic terms like unprofessional, inappropriate, or harassing behavior Requiring concerns to be raised with management

64 Implementing the Social Media Policy While developing and drafting a social media policy is a good start, a policy is not complete without adequate training and education of employees. Simply drafting a policy and inserting it into an employee handbook is not enough. To be effective, the policy should be communicated directly to employees

65 Implementing the Social Media Policy The most effective communication will be through speaking directly with employees. Create an open forum where social media issues are discussed. Educate employees on the fact that content posted on the Internet will remain on the Internet for a long time. While many people may understand the permanency of Internet posts, some employees may not. Taking the time to educate and discuss can go a long way toward protecting the company

66 Summary - Policy Guidelines Review social media policies for language needing definitions or stricter language Modify broad language prohibiting employees from discussing wages, policies, schedules, safety, dress and appearance codes, work assignments, other employees, or management Eliminate or adjust language prohibiting posting of company logos, company name, identification of employee with the company, etc. You can still restrict use of intellectual property

67 Summary - Policy Guidelines Do not maintain policies requiring employees to maintain strict confidentiality over wages, bonuses, or commissions Where legitimate confidentiality issues are involved, define information deemed confidential (Social Security numbers, the Coke formula, strategic marketing plans, parent financial information, employee medical information, patient names or medical conditions, etc.)

68 Summary - Policy Guidelines Add a disclaimer at end of policy making clear that it is not intended to restrict employee section 7 rights under the NLRA You can still bar social media use during working hours You can require disclosure as personal opinion