23 Employee Handbook

Revisions for 2011

2011 © Alan J. Thayer, Jr. All rights reserved.

Presentedas an educational service

by

Oregon Business Attorney

Alan Thayer

and

This information is presented as an educational service. For legal advice or answers to specific questions, consult an experienced lawyer.

Every year, we track new legislation, court decisions, social changes, workplace issues and important trends that can affect your workplace. 

We then recommend Employee Handbook updates to our clients so they can stay on top of these developments. More importantly, we help employers prevent costly employee lawsuits. 

We keep track of changes in employer liability issues so you do not have to.

“We keep track of changes in employer liability issues so you do not have to.”

This year, we recommend 51 changes, set out on 19 employee handbook pages, covering 23 different topics.

This includes employer protections in response to two court cases where minimum damages of $10,000 per employee may now be authorized.

These 23 topics are presented here for your information.

Proactive, take charge employers will update their

employee handbooks accordingly.

Workplace Flexibility

It should go without saying that you can modify the terms and conditions of employment at your organization.

A federal court in Maryland and a state court in Hawaii, however, have disagreed.

Many employees and state regulators now seem to think of jobs as a vested right regardless of performance or conditions.

Language should be added to your handbook to preserve your right to modify jobs, compensation and benefits to meet your needs.

12011

Temps to HireYou should be aware of the legal dangers created by probation periods for new employees (DO NOT do this).

You can, however, hire new workers as temporary employees.

This gives you time to evaluate before promoting to a full or part time position.

Have language added to your handbook describing this type of employee.

We will write more about this approach in a future LegalBriefs newsletter.

22011

No WorkNo Holiday Pay

Do you want to pay holiday pay to employees that are on extended leave (other than vacations)?

This includes extended personal leave, military leave and state and federal family and medical leave?

This can be addressed with a revision to your holiday pay policy.

32011

No WorkNo Vacation Pay Do you want time spent on an extended leave (other than vacation time) to count towards vacation calculations?

This includes extended personal leave, military leave and state and federal family and medical leave?

If not, your handbook vacation policy can be revised. But do so carefully.4

2011

Leave Terminations

Employees often believe that they can not be terminated when they are on state or federal family or medical leave.

This is not true.

Handbook revisions can help you if it ever becomes necessary at your organization to layoff or terminate an employee on family or medical leave.5

2011

Driving Safety Do you know what your employees are doing when they operate a motor vehicle on your organization’s business?

Recent studies have shown the risks of driving while distracted.

A survey just came out showing that texting, emailing, eating, dressing (and undressing), kissing, hair styling, applying makeup, reading, writing, playing video games and even sexual acts (15% of drivers) are occurring behind the wheel.

Revise your handbook in response to these revelations.

62011

Attendance Policy Trap

You can fall into a liability trap if an employee you discipline for violating your attendance policy later claims his or her problems were caused by a disability.

You can head this off with a handbook revision.7

2011

Pirates& Wenches

Inappropriate costumes and outfits at parties and in the workplace (think Halloween) continue to cause problems for employers.

Additional handbook provisions should be added.8

2011

Identity Theft Workplace identity theft appears to be a growing problem.

Handbook revisions should be added in response.9

2011

Chewing Tobacco

Do you really need to tell employees that chewing tobacco is prohibited in buildings and vehicles?

Evidently you do.102011

Social MediaPart 1

The Federal Trade Commission (FTC) adopted a new “guide” aimed at online marketers that can also ensnare employees that make comments online and their employers.

Handbook provisions should be added to help prevent FTC claims.

As discussed below, however, other federal agency pronouncements are in conflict with the FTC position.

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Social MediaPart 2

Employers have a duty to prevent and correct harassment.

There is no doubt courts will rule this includes online threats, intimidation, bullying and harassment.

Your interest in preventing this type of conduct should be addressed in your employee handbook.12

2011

Social MediaPart 3

The National labor Relations Board (NLRB) apparently is not aware of the FTC’s concerns or the risks of online harassment.

The FTC has taken the position that employer’s guidelines on blogging and social networking can constitute unfair labor practices, even for employers that do not have a union and are not currently the subject of an organizing campaign.13

2011

The social media policy provisions discussed above must be added with the new NLRB position in mind.

Until the current or a future administration develops coherent social media guidelines for employers, you should have an experienced lawyer help you walk this narrow line.

2011

Employee Generated Content

Who owns online content relating to your business created by your employees?

This is a very real question that a client and numerous other businesses faced last year.

A proper handbook provision should be added putting your employees on notice that content relating to your business is a “work for hire” owned by you.

142011

Computer Care You rely on employees to use common sense to care for the computers they use.

How is that working?

Are there problems that you do not know about?

Computer care expectations should be added to your handbook.15

2011

Laptop Care Yes, laptops are computers.

There are, however, additional tips employees should follow to care for this important tool.

They should be added to your handbook.162011

Cell Phone Care Even though cell phones have been around for a number of years, misuse and abuse occur every day.

Sometimes out of ignorance.

Other times out of errors in judgment.

Tips advising and reminding employees how to care for phones you provide should be added.17

2011

Federal Wire Tap Act

It has been believed that a standard notice to employees shielded employers from claims under the Federal Wire Tap Act (a law aimed at organized crime).

This act provides for minimum awards of $10,000 or $100 per day of violation, whichever is greater.

A new decision from the U.S. Court of Appeals for the 7th Circuit and a recent decision by a Texas Federal District Court changes everything.

182011

These rulings put employers at risk for a minimum of $10,000 per employee, even when there has been no damage.

Adding a notice provision to your employee handbook is the least that you should do.

We found a simple way to also obtain an affirmative consent from each employee that should comply with the Federal Wire Tap Act.

2011

Third Party Retaliation

In January 2011, the United States Supreme Court ruled that third parties can sue employers for retaliation.

Best practices start with careful handbook language.19

2011

Severance Pay You are under no obligation to pay severance pay to a departing employee.

However, in the right case, it can be a great way to prevent problems and get a release during layoffs or when terminating problem employees.

If you have not done so already, add a new provision making clear that severance pay is not to be expected but is instead up to your discretion.20

2011

Arbitration You may be aware that Oregon adopted a statute a few years ago limiting employers’ use of arbitration agreements.

That statute appears to violate the Federal Arbitration Act.

One federal court has already agreed that is the case.21

2011

If you can, you should comply with the Oregon arbitration agreement statute requirements.

If you can’t, you still should obtain agreements to submit claims to arbitration.

Unfair labor practice claims, however, must be excepted.

A handbook policy alone will not suffice.

We, however, have found a way you can have employees agree to arbitration without disrupting your workplace.

2011

Employee Questions

Would an employee claim they do not understand one of your policies after you discipline or terminate them for violating that policy?

Of course they would.

A handbook provision should be added for this very situation.22

2011

Reporting Complaints

Last year, we recommended comprehensive workplace complaint reporting procedures.

Of course, it is good to get early warnings of problems before they turn into serious liability risks.

The real purpose though is to head off after-the-fact claims by terminated employees that “oh yeah, something bad happened in the past that I did not report and therefore I want money.”

An additional reporting option should be added to this policy.

232011

Thats it!

23 Employee Handbook Revisions for 2011

For other employee handbook update recommendations over the last few years, go to our Recent Employee Handbook Updates summary.

For more tips and information, subscribe to our free email newsletter, LegalBriefs.

welcomes your questions and comments

541-345-2325 • www.thinkILG.com • alan@thinkILG.com

Oregon Business Attorney

Alan Thayer

541-345-2325 • www.thinkILG.com • alan@thinkILG.com