Transcript What`s In, What`s Out

Employee Handbooks: What’s In,
What’s Out?
March 2, 2010
Megan L. Anderson
[email protected]
Create or Periodically Update a
Customized Handbook
• Factors influencing Handbook contents:
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Employer size
Nature of business and job positions
Public vs. private sector employer
Union vs. non-union
Affirmative Action employer or not
Locations / Unique Local Laws
Changes in the law, best practices, or the
particular business
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What’s “In”: Contract Avoidance
• A Prominent Contract Disclaimer:
– Narrow to Broad Options: Disclaim all contractual
obligations or modification of at-will employment
– Reserve the right to amend and interpret policies
– Supersede earlier written or oral policies and/or
practices
• Obtain and Retain a Handbook Receipt from each
Employee:
– Acknowledge receipt
– Agreement to abide by policies
– Acknowledgement of at-will employment and contract
disclaimer
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What’s “In”: Contract Avoidance
• Identify desired conduct of employees, rather than
promised conduct of company or management
• Say what you mean and mean what you say:
– Only make promises that company intends to and can keep
• Use language that gives employer flexibility and
discretion
• Avoid and/or very carefully draft policies that may
suggest contract rights or alter at-will employment
• Avoid ambiguity, gaps, and conflicts in handbook policies
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What’s “In”:
Updated Anti-Discrimination Policies
• EEO/Anti-Discrimination Policy:
– New federal Genetic Information Nondiscrimination
Act (GINA) added genetic information to legally
protected classes
• Disability Accommodations Policy (for
employers with 15+ employees):
– Americans with Disabilities Act Amended
– New regulations are anticipated in 2010
• Anti-Harassment Policy:
– Cover all protected classes and content needed for
legal defenses
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What’s “In”: Updated FMLA Policy
• Family & Medical Leave Act Policy:
– A written policy is legally required for
employers with 50+ employees
– Update policy to address recent
amendments to FMLA and new regulations
• New military-related entitlements for exigency or
caregiver leave
• Extensive changes in the regulations
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What’s “In”: MN Personnel File Policy
• MN Personnel Record Review and
Access Act:
– Effective January 1, 2008
– Applies to companies with at least 21
employees
– Requires written notice to newly hired
employees of “Rights and Remedies” under
Act
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What’s “In”: Vacation/Sick/PTO
Policies
• 2007 Minnesota Supreme Court Decision Held
that Employer’s Policy controls what earned
• Maintain a Clear, Written Policy in or Separate
from the Handbook and address:
– Use it or lose it/Roll-overs/Caps
– Restrictions on use (e.g., timely requests, seasonal
restrictions, etc.)
– Payout at termination or not
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What’s “In”: Other Leave Policies
• Legally Required Leaves (depending on
employer size):
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MN Parental Leave
Sick/Injured Child Care Leave
School Activities Leave
Jury/Witness Duty
Time Off to Vote
Military Leave
Bone Marrow Donation
“Reasonable Accommodation” Disability Leave
• Paid Holidays
• Bereavement
• Medical and/or Personal Leave
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What’s “In”: Wage and Hour Policies
• Employee Classifications and Policies
for Non-Exempt Employees:
– Work week and working hours
– Breaks and meal periods
– Timekeeping and overtime
• Safe Harbor Policy for Exempt
Employees:
– Allows company opportunity to correct
improper salary deductions that could affect
exempt employee status
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What’s “In”: Technology and Online
Social Networking Policies
• Company Property and Technology Policies:
– Use of Employer Property and Workspaces
– Use of Company Provided Technology
• Voice-mail, E-mail, Internet/Web, PDA’s, and Other
• Company’s Ability to Search/Monitor
• Social Networking Policy:
– Facebook, Myspace, Twitter, Youtube, Blogs, etc.
– Policy should balance employer’s interests with
employees’ protected activities and possible privacy
rights
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What’s “In”: Litigation-Driven Policies
• Whistleblowing Policy:
– To address rise in retaliation claims
• Document/Data Retention and
Destruction:
– To address legal recordkeeping
requirements
– To address e-discovery requirements in
litigation
– Might have longer policy outside handbook
with a cross-reference in handbook
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What’s “In”: Employee Expectations
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Attendance/Tardiness/No-Call, No-Show
Weapons/Violence
Drug, Alcohol, Smoke Free Workplace
Conflicts of Interest
Confidential Information
Intellectual Property
Safety/Work-Related Injuries
Employment of Relatives/Nepotism
Supervisory Romantic Relationships
Telecommuting
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What’s “Out”: Things to Separate
from the Handbook
• Some Acknowledgements Must be Separate
from the Handbook:
– FCRA/Background Check Authorization
– Alcohol and/or Drug Testing Policy and Authorization
• Key Contractual Commitments Should be
Separate:
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Confidential/Trade Secret Information
Noncompete and/or Nonsolicitation Obligations
Invention Assignment
Arbitration
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What’s “Out”: Things to Consider
Omitting Entirely
• Be careful of policies that could alter atwill employment or create contracts:
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Probationary Policies
Discipline or Termination Policies
Grievance Policies
Strict Attendance Policies
• Regulation of non-work behavior:
– MN Lawful Consumable Products Law
– Privacy Considerations
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What Could Be In or Out: Labor Law
Considerations
• Policies that Implicate Federal Labor Law
Rights:
– Use of Company E-mail System or other Technology
– Confidentiality, e.g., wages
– Mandatory Arbitration
– Fraternization on and off the job
– Solicitation and Distribution
– Anti-Union Statements
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• Questions?
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• Speaker Contact Information:
Megan Anderson
(612) 632-3004
[email protected]
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