Posted: Jan 12, 2018
With a New Year upon us, many companies are taking the time to revisit their handbooks to identify whether there is a need for a checkup. While handbooks vary in scope and detail, below are 5 policy areas that employers should consider reviewing:
- Sexual Harassment: With the rise in social awareness about Sexual Harassment and Workplace Respect in general will come the need for companies to review the scope and depth of their policies not only to ensure their policies are current regarding the process and procedures for handling complaints but also in the messaging being communicated by leadership in general. Will the message be narrowly tailored to target and prohibit Sexual Harassment or will it be broaden to cover other forms of unlawful harassment?
- Equal Opportunity: With additional protected classes coming into effect into 2018 in some jurisdictions (such as state initiatives designed to expand pregnant workers) employers should ensure that their EEO policies cover these new protected groups.
- Pregnancy Accommodation: Some states, such as Massachusetts, Connecticut and Rhode Island, have enacted pregnancy accommodation laws that will provide expanded communications and policies to inform employees about their rights to pregnancy accommodations and what forms of accommodations that might entail.
- Standards of Conduct or Employee Conduct: With a new composition of Board Members at the National Labor Relations Board come new interpretations on a variety of subjects that affect handbooks. A recent case involving Boeing reversed previous precedent and sets forth a new balancing framework for setting policy standards. Policies concerning civility, social media, and confidentiality are just some of the subjects that will be affected as cases arise in the future.
- Leaves of Absence: As states continue to adopt sick leave legislation and/or paid family leave legislation, companies will either need to add leave policies to comport with the new requirements or update their existing policies to ensure that they are properly aligned to allow for optimal administration and clear communication to employees.
Notwithstanding the policy hot topics, employers always need to beware of pitfalls in drafting handbooks in general. Below are five pitfalls to avoid:
- Gender-Identifying Pronouns: As anti-discrimination laws expand and recognize gender identity as a protected-class, avoid using language like “he” and “he/she” in policies. Rather use language like “they”, “them”, “employee” or “employees” where possible.
- Contract Language: Handbooks often represent general yet flexible guidance for employees and management alike. Avoid language or phrases such as “terms or conditions of employment”, “in consideration”, and “employer and employee agree” that could potentially leave the door open for a court to construe the document as a contract.
- Handbook Versions and Revisions: Failure to maintain revision dates, failure to execute and maintain signed acknowledgement forms confirming receipt of the current handbook revision or failure to identify in the handbook that the current handbook supersedes prior editions all can raise questions of which policies apply and govern employees. Avoid misunderstandings and confusion by incorporating structure in your handbook.
- Avoid Legal and Ambiguous Terminology Where Possible: Your employees are not lawyers. Avoid legal language and ambiguous terms that might be open to different interpretations between management and employees. Use easy-to-understand, objective language in policies, particularly in discipline and related policies. Provide clear examples of behavior, if needed to provide a better understanding of employer expectations.
- Avoid Automatic Termination or “Cliff” Language in Leave of Absence Policies: Leave policies that dictate that termination will automatically result after a certain amount of time could be construed as unlawful by a court or agency because it disregards the employer’s obligation under the Americans with Disabilities Act to engage in a “good faith interactive process” and fails to consider whether an extended leave of absence would be an undue hardship on the employer.
Make a New Year’s Resolution in 2018 to get your handbook review and updated. For more information, contact Mark Adams toll-free at (877) 662-6444 or via email at firstname.lastname@example.org.