Is That in Writing? Making the Most of Your 2018 Employee Handbook. October 2017

Transcription

1 Is That in Writing? Making the Most of Your 2018 Employee Handbook October 2017

2 Deidra A. Nguyen Littler Mendelson, P.C. (619) Licensed in California and Washington April 2017

3 Agenda 1 Do you really need a handbook? 2 Common approaches to drafting a multistate handbook 3 What to include in your handbook 4 Key trends in handbook drafting 5 NLRB criticism of employee handbooks 6 Drafting resources

4 Poll Question: Having a handbook is required under federal law for employers with 50 or more employees 2. required under state law for employers with employees in multiple states 3. recommended for employers of any size

5 Do you really need a handbook? Who reads this stuff anyway? Educates Demonstrates Compliance Promotes Fairness Supports Policy Enforcement Myth: Only big companies need handbooks

6 Drafting a Multistate Handbook Some common approaches National handbook and state supplements Separate handbooks for each state National handbook with supplements for certain states National handbook with required state policies

7 Poll Question: Does your organization currently have an employee handbook? 1. Yes, and we have employees working in only one state. 2. Yes, we have one handbook that applies to employees in multiple states. 3. Yes, we have different handbooks depending upon where the employee works. 4. No. 5. Other

8 Policies that generally must be included Applicable law mandates that a written policy be included Statement that company complies with all applicable laws State supplements: Local requirements that differ from national

9 Policies that are strongly recommended At-Will Statement Discrimination, Harassment, and Retaliation Wage/Hour Paid Sick Leave/Paid Time Off Legally-Required Leaves

10 Policies that should not be included Aspirational policies Operational policies Job descriptions Policies that are intended to be contractual Policies that conflict with contractual or legal commitments Policies that limit the company s discretion

11 Key Trends in Handbook Drafting Proliferation of local legislation Agency criticism of barriers to external remedies Defend Trade Secrets Act EEOC on Parental Leave NLRB Criticism of Employee Handbooks

12 Poll Question: Do you offer paid parental leave? 1. Yes. 2. No.

13 Key Trends in Handbook Drafting EEOC on Parental Leave

14 Poll Question: Is your workforce unionized? 1. Yes 2. No

15 Key Trends in Handbook Drafting NLRB Criticism of Employee Handbooks

16 NLRB Criticism of Handbooks Both unionized and nonunionized employers are affected Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.

17 NLRB Criticism of Handbooks Handbook provisions violate the NLRA if they... actually interfere with Section 7 activities have been applied to interfere with Section 7 activities were promulgated in response to union activity could be construed to interfere with Section 7 activities

18 What Does it Mean for Activity to be Protected? Employees have a statutory right to: Take action to improve working conditions Discuss dissatisfaction with working conditions with one another Criticize management s actions affecting their conditions of employment Enlist outside support Discuss wage rates, bonuses, and benefits with one another Complain about favoritism, policies, or other terms and conditions of employment

19 Policies Under NLRB Scrutiny Common Offenders Off-Duty Access by Employees Conflict of Interest Confidentiality of Investigations At-Will Disclaimers/Acknowledgments Acknowledgment Workplace Conduct Social Media Arbitration Fraternization Recordings in the Workplace Use of Electronic Equipment Solicitation / Distribution Confidentiality Contact with the Media

20 Drafting Resources XpertHR Resources Littler Mendelson Resources NLRB General Counsel Issues Report Concerning Legality of Common Employer Rules How to Craft an Employee Handbook Outside the United States or Whether to Issue One at All

21 Poll Question: Are you going to be making changes to your handbook based on what you learned today? 1. Yes 2. No 3. Maybe/Undecided

22 Thank You! Visit XPERTHR XpertHR