Is Your Employee Handbook Your Ally or Your Albatross? Patrick Samsel Corporate Counsel Fors Marsh Group Anessa Abrams Partner FordHarrison LLP Nancy Holt Counsel FordHarrison LLP December 18, 2017
Handbook Basics 2
Benefits of Employee Handbooks Legal compliance / protection Communicates operational policies and organizational culture Acts as a shield for company; not as a sword for employees Advises employees of company expectations Reference tool for employees Promotes consistency 3
General Considerations Use easy to understand language; consider affirmative statements, not prohibitive statements Customize to your organization Multi-state employers Manner of distribution Monitor receipt and acknowledgement Maintain previous versions (by date) Be sure organization can adhere to established policies Avoid rigidity and limitations on organization s discretion Include clear statement that not a contract of employment 4
Must Have Policies... Disclaimers Acknowledgement At-will employment (unless unionized) EEO policy Harassment and discrimination policy No retaliation policy ADA accommodation policy FMLA policy (if covered) Complaint procedure Attendance policy Timekeeping policy 5
Recommended Policies... FLSA safe harbor Explanation of benefits / leave policies Drug free workplace Inspection of company property 6
Optional Policies... Drug and alcohol testing Cell phone use Dress code Anti-nepotism Non-fraternization Alternative dispute resolution Progressive discipline Probationary period No solicitation / distribution E-mail and internet policy / employee communications Confidentiality Non-disparagement Social media Walking off the job / job abandonment 7
NLRB Scrutiny of Employer Policies 8
Protected Concerted Activity: We v. Me Two or more employees addressing their desire to improve their pay, benefits, working conditions, terms of employment, etc. An employee speaking on behalf of one or more co-workers about improving working conditions 9
Does the Rule Violate the NLRA? The Lutheran Heritage (343 NLRB 646 (2004)) test: If rule explicitly restricts activities protected by Section 7 => unlawful If the rule does not explicitly restrict Section 7 activities, whether the rule is unlawful depends upon whether: Employees would reasonably construe the rule to prohibit Section 7 activity; Rule was promulgated in response to union activity; OR Rule has been applied to restrict Section 7 rights 10
Does the Rule Violate the NLRA? The Boeing Company (365 NLRB No. 154 (Dec. 14, 2017)) test: Overrules the Lutheran Heritage reasonably construe standard New test: When evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with Section 7 rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s). 11
Why Lutheran Heritage Reasonably Construe Standard Was Overruled The standard did not take into consideration any legitimate justifications associated with the policy at issue The standard is contradicted by NLRB holdings In the past, the NLRB has balanced employees Section 7 rights against the employer s legitimate interest for a facially neutral policy The standard is predicated on false premises inconsistent with the NLRA and the NLRB s responsibility to promote certainty, predictability and stability The standard imposes too many restrictions on the NLRB The standard does not give sufficient consideration to different work settings, different industries, and specific events The standard has led to significant confusion and litigation 12
The NLRB s Three Categories of Employment Policies, Rules, and Handbook Provisions Category 1 Includes rules the NLRB finds are lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule Examples of Category 1 rules: o No-camera rules o Rules requiring harmonious interactions and relationships o Rules requiring basic principles of civility 13
The NLRB s Three Categories of Employment Policies, Rules, and Handbook Provisions Category 2 Includes rules that warrant individualized scrutiny in each case as to whether the rule, when reasonably interpreted, would prohibit or interfere with the exercise of NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications 14
The NLRB s Three Categories of Employment Policies, Rules, and Handbook Provisions Category 3 Includes rules that the NLRB designates as unlawful to maintain because they would prohibit or limit NLRAprotected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule Example of Category 3 rule: o Rules that prohibit discussion amongst employees about wages or benefits 15
A Note of Caution Even though a rule may be lawful to maintain under either Category 1 or Category 2, the application of the rule to an employee who engaged in NLRA-protected conduct may be unlawful and thus any discipline imposed may violate the NLRA 16
Leave Policies 17
The EEOC Continues to Look at Leave Policies as Possible ADA Violations Of particular focus with the EEOC and its enforcement efforts are leave of absence policies that are inflexible as to duration of the leave of absence. The EEOC views inflexible leave policies as a failure to provide reasonable accommodation. Likewise, limiting leave of absences to only certain groups of employees is viewed by the EEOC as a violation of the ADA s reasonable accommodation requirements. 18
Examples of the EEOC Enforcement Efforts In one lawsuit against a national retail chain, the EEOC alleged that the employer s policy of terminating employees who were unable to return to work after a 12 month workers compensation leave was unlawful and obtained a $6.2 million settlement. Another lawsuit brought by the EEOC against a grocery chain which had a policy of terminating employees at the end of a fixed medical leave period resulted in a $3.2 million settlement. 19
No-fault Attendance Policies Rationale for employer s adoption of such policies. However, the implementation of these policies by employers is viewed as a failure to provide reasonable accommodation by the EEOC. According to the EEOC s interpretation of the ADA, an employee s absence(s) due to a disability should not be charged against an employee under an employer s nofault attendance policy even if the employee does not qualify for FMLA leave of absence. EEOC s position is similar to the position it takes with inflexible leave policies. 20
Best Practices If you have a no-fault attendance policy, the policy needs to be modified to remove mandatory termination provisions. Amend the policy to include language stating that exceptions will be made in order to provide reasonable accommodation and comply with Federal, state and local laws. Be prepared to engage in the interactive process with employees requesting accommodation under the policy. 21
Tips for Crafting Effective Policies Allow yourself to individually evaluate employee requests for additional leave time as a further accommodation. Things you will consider: Definite v. indefinite time Duration of additional leave requested 22
Additional Impermissible Policies Forced leave policies Policies that require a full medical release before allowing the employee to return to work or 100% healed per se violation of the ADA. 23
Laws Requiring the Consideration of Reasonable Accommodations ADA State disability-related laws Pregnancy Leave Laws (e.g., Maryland, Massachusetts) 24
Harassment Policies 25
Why Review these Policies Now? #MeToo 60% of women report having experienced sexual harassment in the workplace BUT, only about 30% of those women report it to their supervisor and only 6%-13% file formal complaints Unwanted physical touching is only reported 8% of the time Impacts of not effectively addressing all harassment: Turnover Increased sick leave Decreased productivity Reputational Injury 26
Create a Corporate Culture Against Harassment C-Suite Show buy-in at the highest level through your handbook and having all employees participate in trainings Consider who sends out reminders about your policy and how often HR What are employees perceptions of HR? How often is your policy distributed? Counsel In-house counsel and outside counsel Middle Management Don t forget about training them on your policies and procedures REGULARLY. 27
Audit Policies and Procedures Are they user-friendly? Are they compliant with Federal, state and local law? Do they explain what is prohibited and give illustrative examples? Do they offer prompt, thorough and impartial investigation? Do they provide assurances of remedial action? Do they discuss confidentiality? Do they prohibit retaliation? Do you have zero tolerance? 28
Electronic Mail, Text Messages and Social Media Are they addressed in your harassment policy? Does your electronic communications policy prohibit harassing and discriminatory behavior? Does it allow you to monitor and inspect e-mails and any communications sent via company platform? Are your supervisors trained on how to communicate with employees in an electronic workplace? 29
Marijuana in the Workplace 30
Marijuana Use Certain uses legal per state statute BUT still illegal under federal law Many state statutes merely decriminalize; others cloak employees with protection, such as: Employer cannot discriminate against employee merely because employee lawfully uses marijuana for medicinal purposes Employer cannot discriminate against employee who lawfully uses marijuana for medicinal purposes based on positive drug test for marijuana UNLESS employee used, possessed or was impaired on employer s premises or during work hours Employer must provide reasonable accommodations 31
Model Policies LGBTQ-related policies to review and/or implement 32
EEO Policy Includes gender identity or gender identity and/or expression Sexual orientation 33
Policies to Consider EEO Discrimination/Harassment Bathroom Pronoun Use Gender Transition Confidentiality and Privacy 34
Legal name vs. preferred name Sample Policy: Our company will change an employee s official record to reflect a change in name or gender upon request from the employee. Certain types of records, like those relating to payroll and retirement accounts, may require a legal name change before the person s name can be changed. Most records, however, can be changed to reflect a person s preferred name without proof of a legal name change. 35
Pronouns Sample Policy: An employee has the right to be addressed by the name and pronoun that correspond to the employee s gender identity, upon request. A court-ordered name or gender change is not required. The intentional or persistent refusal to respect an employee s gender identity (for example, intentionally referring to the employee by a name or pronoun that does not correspond to the employee s gender identity) can constitute harassment and is a violation of this policy. If you are unsure what pronoun a transitioning co-worker might prefer, you can politely ask your coworker how they would like to be addressed. 36
Gender Transition Guidelines Start a year out Before the transition begins Create an employee-specific transition plan Choose the day the transition will be known to the team Plan ahead create a timeline of all the changes that need to occur and the lead time needed for each item Who will announce the transition? Include high-level management Answer questions Make clear business as usual going forward The first day of the employee s official workplace transition Look at it like a new employee s first day is everything in order? 37
Restroom Policies Consider allowing transitioning employees to use the facilities that correspond to their Gender Identity. Once the real life experience begins, to the extent possible, do not require the employee to use the restroom of his or her designated sex at birth. Focus on the employee s outward presentation. To the extent you encounter co-workers who have personal concerns about sharing a restroom or locker room with a transgender individual, create a policy that provides them with a person to discuss their concerns. Co-worker bias and fears about bathrooms do not justify discrimination against transgender employees. 38
Thank you! Questions? Anessa Abrams, Partner, FordHarrison LLP aabrams@fordharrison.com Nancy Holt, Counsel, FordHarrison LLP nholt@fordharrison.com Patrick Samsel, Corporate Counsel, Fors Marsh Group psamsel@forsmarshgroup.com www.iuslaboris.com