Top 10 Tips in 2023 For Your Employee Handbook
The employee handbook is one of the most important and powerful tools to help employers avoid employer liability and ensure compliance with employment laws. Not only do some states mandate certain requirements for employee handbooks, but a thorough and up-to-date employee handbook is necessary to help employers demonstrate their compliance with the law and set workforce standards for which employees are to be held accountable. As the federal government and state legislatures have been active in 2023, employers should be sure the review and update their handbooks to ensure that they meet current standards that may have changed within the past year.
A comprehensive employee handbook will take time and legal advice that is specific to the circumstances of each employer and employee. However, in reviewing their handbooks to ensure they are current and up-to-date, employers should keep the following in mind:
1. EEO, Discrimination, Harassment, and Retaliation Prevention Policy Considerations
Policies regarding Equal Employment Opportunity, discrimination, harassment, and retaliation prevention are likely the most important aspects of an employee handbook. By implementing compliant policies, employers establish proper workplace standards that will enable them to take action against any lawful conduct that violates Title VII of the Civil Rights Act and other similar state laws.
Employers should ensure that their policies meet some of the more recent legal updates. For example, in response to the Supreme Court’s 2020 decision in Bostock v. Clayton County, policies should be updated to clarify that sexual orientation and gender identity are included as a protected status. Additionally, multi-state employers should be aware of all the varying statuses that are protected in each state.
2. Pregnancy-related Protections.
On June 27, 2023, the Pregnant Workers Fairness Act went into effect, which requires employers to provide a reasonable accommodation to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. Additionally, employers should keep in mind the PUMP Act, which also went into effect earlier this year. The PUMP Act requires employers to provide reasonable break time to an employee to express breast milk for such employee’s nursing child for up to one (1) year after the child’s birth, each time the employee needs to do so. Employee handbooks should include policies that put employees, and most importantly supervisors and managers, on notice that employees are entitled to the rights under these laws.
3. Employee Handbook Disclaimer and At-will Employment
Although employers should already clarify the at-will nature of employment in an employee’s offer letter, employee handbooks should start with a strong “disclaimer,” in clear and conspicuous language that clarifies the at-will status of employment and the limited circumstances under which such status may be adjusted (e.g. only in writing, signed by a president of the company). The disclaimer should also state that nothing in the handbook is intended to form a contract, but is only intended to present policies governing the employment as well as certain workplace standards, with which the employee is required to comply during the employment. The disclaimer should state that the handbook does not necessarily provide a comprehensive list of all the employer’s policies and that it supersedes all prior versions of the handbook.
4. Avoid Violating the National Labor Relations Act
In the National Labor Relations Board’s (NLRB) recent August decision in Stericyle, Inc., the NLRB took a stronger stance in how it evaluates whether an employer policy prohibits an employee from engaging in a “concerted and protected activity” under Section 7 of the National Labor Relations Act. Under the new ruling, the NLRB will presume that an employer rule is unlawful if it “has a reasonable tendency to chill employees from exercising their Section 7 rights.” This presumption exists “even if a contrary, noncoercive interpretation of the rule is also reasonable.” In short, if an employee can reasonably interpret a rule in a way that would inhibit their Section 7 rights, such a rule will be presumed to be invalid. An employer may rebut this presumption by showing that (i) the rule advances a legitimate and substantial business interest, and (ii) the employer is unable to advance that interest with a more narrowly tailored rule.
It is uncertain how the NRLB’s precedent will affect future rulings, but employers should be aware that it presents a significantly higher burden against the employer. Employers should ensure that their workplace conduct policies are drafted in a way to avoid any circumstance where a standard or rule could be interpreted to have a tendency to “chill” an employee’s Section 7 rights. Employers may also consider drafting such policies in a way so that it is clear that such a policy is the most narrowly tailored method available for the employer to advance the applicable, legitimate, and substantial interest.
5. Religious Accommodation
In May of this year, in Groff v. DeJoy, the Supreme Court clarified employers’ responsibility to provide religious accommodations. Prior case law suggested that if an accommodation presented a “de minimum” cost to the employer, the employer would be justified in denying an employee’s request for a religious accommodation. In Groff, the Supreme Court clarified that an undue burden to justify a denial is much more severe than a “di minimus” burden, suggesting that employers should analyze a requested accommodation similar to how they would analyze a request for an accommodation for a disability.
In response to the Supreme Court’s decision, employers should ensure that their employee handbooks include a provision that addresses the availability of religious accommodations. Employers should review such provisions to ensure that they do not include language based on outdated case law.
6. Leave Provisions
Leave laws are frequently the most updated and modified state employment laws. Multi-state employers should annually review any new legislation that updates state-mandated leaves and ensure that their employee handbooks comply with any such updates. For example, California just expanded its bereavement leave requirements to include up to five (5) days of leave for a reproductive loss event, as defined in the updated statute. By specifying the availability for such leave in the Employment Handbook, California employers can put their employees, and especially supervisors, on notice of the availability of such leave. This will help the responsible parties properly administer such leave in the event that a qualifying circumstance arises.
7. Wage and Hour requirements
Employee handbooks should set the necessary policies to assist employers in meeting federal and state wage and hour requirements. For example, employee handbooks should define when the workweek starts and ends for the purpose of calculating overtime. California employers, and employers in states with daily overtime, should set the workday to assist in the calculation of daily overtime. If an employer has exempt employees, the employee handbook should include a provision that addresses deductions to an exempt salary and what an exempt employee should do if they believe that an improper deduction has been made. Employers should also be sure to include procedures for how to log time, including impermissible methods (e.g. clocking in on behalf of other employees).
Ultimately, there are a number of relevant policies that employers should consider adding to their employee handbooks to ensure that they are in compliance with applicable wage and hour laws. Multi-state employers should review each state’s wage and hour laws to make sure that their policies meet the applicable state’s requirements (e.g. meal and rest-break laws, waiting time laws, laws limiting consecutive days worked, etc.)
8. Remote Work Policies and Expenses
As more employees work remotely, employers should ensure that they have proper policies in place to address a remote work environment. Such policies may detail when remote work is appropriate and specific requirements for how work may be performed remotely. Such policies can also address expenses that may occur as a result of remote work. Under California Labor Code Section 2802, employers are responsible for reimbursing employees for necessary expenditures incurred in the employee’s discharge of their duties. Such costs can include an employee’s expenses in setting up a remote work situation and employers can address how such reimbursements will work in the remote work policy.
An employee handbook is not “complete” unless it is acknowledged by the employee, which will assist employers in holding their employees to the standards in the handbook. At the start of employment, the employer should ensure that every employee receives and has an opportunity to review the employee handbook. The employee should sign an “acknowledgment,” which is usually found at the end of the handbook, and which generally mirrors the disclaimer at the beginning of the handbook. The acknowledgment should include the following assertions:
– That the employee has understood the handbook and agrees to comply with it,
– That the employer has the maximum discretion permitted to modify, change, and update the contents of the handbook, as may be done in writing by the named employer representative,
– That no statement by a supervisor or employee can supplement or modify the handbook,
– That the employer’s failure or delay to enforce a rule or standard does not constitute a waiver, and
– That the handbook does not create a contract of employment, and that nothing in the handbook modifies the at-will employment
In addition, employers should ensure that the acknowledgment meets any applicable state-imposed requirements. For example, in California, employers are required to specifically acknowledge the employer’s harassment, discrimination, and retaliation prevention policy. An employer may meet this requirement by creating an additional acknowledgment, following the general handbook acknowledgment, where the employee makes a comparable acknowledgment of receiving, understanding, and committing to comply with the applicable policy.
Employers should ensure that they save and file each employee’s acknowledgment in the applicable employee file.
10. State Addendums
As indicated several times in this article, multi-state employers should ensure that they meet the requirements of each state in which they employ workers. To assist in this, employers are encouraged to create additional “state handbook addendums” for each state in which they operate. Such state addendums can add additional state-specific policies to the existing handbook. For example, where a Utah-based employer employs employees in California, the employer may choose to not have a section in their general employee handbook that provides and explains an employee’s leave rights under the California Family Rights Act (CFRA). However, such an employer should have a separate “California Addendum”, which should include a policy that informs employees of their CFRA rights under state law.
As indicated, the guidance in this document is not intended to provide a comprehensive list of requirements for employee handbooks, but it should assist employers in their review of employee handbooks and should help them consider possible updates based on changes in the law and current work trends.
If you have any questions about your employee handbook, or if you would like assistance in reviewing or updating your employee handbook, please contact your Kunzler, Bean & Adamson attorneys.
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