Make certain these new laws and recent court decisions are part of your document.
If it has been a few years since you last updated your employee handbook (and if you don’t have one, we need to talk), now might be a good time to dust it off and give it a good update. On the federal, state and even local levels, there have been many new laws enacted and critical court decisions that need to be reflected in your handbook. Here are just a few:
1. Protected Speech And Social Media. Mobile devices are increasingly becoming a mainstream workplace tool, and the use of social media permeates both our personal and professional lives. While the positive aspects of these tools are obvious, there are serious concerns. For example, companies want their employees to share positive, relevant information about the business, but not negative or confidential information. Few handbooks older than three or four years have sufficient language to address this concern.
Your employee handbook should discuss appropriate online conduct. It is fine to contain language prohibiting employees from revealing confidential business information, such as data on vendors and customers, but the text should avoid any language that could be interpreted as infringing on speech and actions that the National Labor Relations Act (NLRA) protects, such as discussions on terms and conditions of employment including wages, hours, collective bargaining and working conditions.
2. LGBT Rights. In 2015, the U.S. Supreme Court decided that states must recognize same-sex marriages and companies must provide same-sex married couples the same health and retirement benefits that they offer to other wedded people. More than 20 states have gone on to expand their anti-discrimination protections to include transgender individuals, while the Equal Employment Opportunity Commission (EEOC) has established that gender identity is included within protections covered by Title VII of the Civil Rights Act of 1964.
To demonstrate their compliance to this evolving area, employers need to revisit their benefit policies to reflect the new definition of “spouse,” and they should consider altering their non-discrimination and non-harassment policies to include marital status, sexual orientation and sexual identity.
3. Retaliation. The most common charge brought by the U.S. Equal Employment Opportunity Commission (EEOC) is retaliation against employees for making a complaint or because they filed a charge of discrimination against their employer. It is critical to remember that how you handle a complaint can create as much of a liability for your company as the complaint itself.
Employers are wise to make sure their handbook states that the process for evaluating a claim of harassment, discrimination or any other claim will be fair for both the person making the claim and for the individual who is being accused, and that the company prohibits acts of retaliation against employees for making a charge or claim.
4. Smoking and Marijuana Use. Given the increasing use of e-cigarettes (vapes) and other smokeless devices, employee handbooks should mention e-cigarettes specifically in their smoking policy and should clearly state that they and other tobacco and nicotine products are covered under the smoking policy. The handbook should also regulate them like any other tobacco-related product, including where and when they can be used.
Many states have eased restrictions on the recreational and/or medical use of marijuana. While those state policies vary widely, it’s generally safe to state in your handbook that marijuana used for recreational and medical purposes will be treated like other drugs and substances with regard to their use at the workplace, and that use of marijuana at work and/or being under the influence of it at work is prohibited.
5. State Updates. Increasingly, states and municipalities have been leading the way in passing significant labor law reforms. These include mandating paid and unpaid sick leave, minimum wages, accommodations for pregnant women and new mothers, equal pay standards, “ban the box” legislation, LGBT nondiscrimination, drug testing and many other changes to laws and workplace regulations. Remember, you are responsible for staying abreast of changes to laws and regulations within each state and municipality where your employees are located, and your employee handbooks should be updated or amended each year to make sure they are fully compliant with all relevant laws and regulations.
Claudia St. John, SPHR, SHRM-SCP, is president of Affinity HR Group, LLC and author of the amazon.com best-selling book, Transforming Teams—Tips for Improving Collaboration and Building Trust. Affinity HR Group, PPAI’s affiliated human resources associate, specializes in providing human resources assistance to associations such as PPAI and their member companies. www.affinityhrgroup.com.
Q&A With Claudia St. John
Send your human resources-related questions for Claudia St. John to email@example.com. Select questions will be answered in future issues.
Q. Is it a good idea to use exit interviews to assess why people are leaving the organization?
While the exit interview is a good tool to assess the reasons why employees are exiting the organization, it is often too late to affect the exiting employee’s decision. You want to solicit the information before employees even consider leaving the organization. Exit interviews are becoming passé; the new HR buzzword is “stay interviews.” You want to find out why people stay, why they come to work every day and, based on that feedback, continue to do more of what is working. You need to keep a frequent pulse on your employee engagement level to ensure they are content and committed. Exit interviews do little to keep the employee from leaving as they are often a day late and a dollar short of influencing someone’s decision. Consider using a pro-active management tool such as the “stay interview.”
Q: There was a lot of buzz last year about the Obama Administration increasing overtime pay. I haven’t heard anything about that in a while. Has that gone away?
Changes to the Fair Labor Standards Act’s overtime rules, announced by the Obama Administration in 2015, are set to go into effect December 1, 2016. The minimum salary that is exempt from the overtime provision of the FLSA will increase from $455 to an estimated $913 per week. Employers will need to make the necessary changes by either re-classifying employees as non-exempt or increasing their salaries accordingly. Start working now on a strategy to handle this significant change.
Q: We want to hire a new customer service representative and need to put together an offer letter. What should be in an offer letter and do I really need one?
An offer letter is a good practice as it provides all of the critical information related to the employee’s new job. You should be sure to include language that states that the offer is “at will” and that nothing in the offer letter should be construed as a contractual employment agreement. In addition to this language, your offer letter should include:
• Start Date
• Position title and description
• Wage/salary and pay cycle information
• General benefit and vacation information (specific information should be provided at a later date)
• Non-compete, non-solicitation and confidentiality language
Finally, you should recognize that this offer is a legal document and, as a best practice, have it reviewed by legal counsel.
Q: July 4 fell on Monday this year and, because we are open all weekend, many of our employees already have Monday off. When a holiday falls on a Monday, do we have to pay employees for that time off? And, if so, if they exceed 40 hours that week when we include the holiday pay, do we need to pay them overtime?
There is no federal or state law that requires employers to provide paid holidays. Instead, what guides this decision is what you have in your employee handbook or holiday policy. So the answer is in your own policy language. Typically, employers will give workers a different paid day off, say the Friday before the holiday, so that employees do not earn more than they would in a typical week, thereby avoiding the overtime concern.