An out-of-date employee handbook that fails to recognize ever-evolving laws and regulations is more harmful than helpful to an employer. It is important to ensure that your company’s handbook stays current and ‘with the times.’ The following are six employment law topics that should be taken into consideration during your handbook review and revision process:
1. LGBT Protections. Laws, courts, and administrative agencies (State and Federal) continue to expand protections for lesbian, gay, bisexual, and transgender employees. From the EEOC’s perspective, Title VII of the Civil Rights Act forbids any employment discrimination that is based on gender identity or sexual orientation regardless of whether such protections are allowed under state/local laws. A few examples of LGBT-related claims recognized by the EEOC include, but are not limited to, the following:
- Failing to hire an applicant because she is a transgender woman;
- Denying an employee equal access to a common restroom corresponding to the employee’s gender identity;
- Harassing an employee based on a gender transition, such as intentionally and persistently failing to use the name and gender pronoun that corresponds to the gender identity with which the employee identifies and which the employee has communicated to management and employees; and
- Denial of a promotion due to an employee’s sexual orientation.
To avoid potential claims, ensure that your company’s equal employment opportunity (“EEO”) policies provide identical protection to all employees without regard to sex, sexual orientation, gender identity/expressions.
2. Pregnant Employees. The Pregnancy Discrimination Act (“PDA”) prohibits discrimination that is based on pregnancy in all aspects of employment which includes hiring, firing, compensation, assignment of job duties, promotions, layoffs, training, and benefits. Also, pregnant workers that experience impairments related to their pregnancies may qualify as disabled under the Americans with Disabilities Act Amendments Act (“ADAAA”), in which case they must be treated the same as other disabled employees for purposes of sick leave and benefits.
Additionally, an employee with pregnancy-related ADA disabilities may be entitled to reasonable accommodations unless it would create an undue burden for the employer. As such, employers should make sure their EEO policies include pregnancy on the list of protected categories and that accommodation policies are revised to include qualified disabled expectant workers.
3. Dress Codes and Religion. Last year, the U.S. Supreme Court held in a case brought against Abercrombie and Fitch that an employer can be held liable for failing to accommodate a religious practice, even if the employer lacks actual knowledge of a need for such an accommodation. Abercrombie had a “Look Policy” that prohibited its employees from wearing caps. A job applicant, who is a practicing Muslim, applied for a retail sales position and wore a headscarf to the interview. The district manager told the recruiter that the headscarf would violate the Look Policy and (even though she was qualified otherwise) instructed her not to hire the applicant.
To avoid such a potential dilemma, make sure that your managers understand that exceptions to dress code policies must be made to accommodate religious practices. Consider revising dress code policies to state that the company is willing to provide accommodations as needed as long as providing such an accommodation(s) does not cause or create an undue hardship.
4. Social Media and Data Privacy. These days, many people perform work-related duties and tasks on personal smartphones and tablets. Additionally, many individuals today utilize various social media platforms (Facebook, Instagram, Snapchat, Twitter, etc.). As such, handbooks should make it clear that employees have no expectation of privacy while accessing social media sites at work on company-owned equipment or networks. Also, the substantial increase of devices being used for both work and personal use creates data security issues for companies. Handbooks should state that employees are precluded from disclosing confidential, proprietary information (and be sure to define “confidential information” and provide specific examples so that employees will not believe that the policy prohibits discussion of wages, hours and working conditions). Also, Handbooks should state that when an employee leaves the company, his or her company-provided or supported device can be wiped clean of the employer’s data.
5. ‘Concerted Activity.’ A company’s policies cannot preclude employees from discussing wages, working conditions or other terms and conditions of employment. Recent cases from the National Labor Relations Board establish that company policies are unlawfully overbroad if they prohibit such “water cooler” talk (albeit on an on-line platform) about working conditions. Furthermore, last year the NLRB released a report concerning employer rules in which it found numerous policies in violation of the NLRA, including confidentiality rules, professionalism rules, trademark rules, conflict of interest rules, photography/recording rules, and media contact rules. To reduce the chance of National Labor Relations Act violations, consider expressly stating that no company policy or procedure is intended to limit an employee’s ability to discuss employment working conditions.
6. Multistate Employers. Employers with employees in multiple states (and foreign countries) must take into consideration legal variations in all of the jurisdictions in which they operate. For example, four states (California, Connecticut, Massachusetts and Oregon) currently require paid sick leave. There are also states and local municipalities that have laws which extend beyond what is required under the Family Medical Leave Act (“FMLA”). Such state and municipal laws need to be taken into account when handbooks, policies, and procedures are being revised. Also, incorporate a legal disclaimer that specifies current and existing law in those states will govern in case any inconsistencies exist between the handbook and the applicable jurisdiction.
Keep in mind these are just a snapshot of legal issues that should be reviewed and revised in an employer’s handbook. To ensure full compliance with the law, please have an attorney – such as the drafter of this article – provide you with a thorough analysis and recommendation(s) of your handbook, policies, and procedures. It will be money well spent to limit your company and/or organization’s legal exposure.