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Employee Handbook Updates for 2017: A Critical Refresher on the Most

Current Changes to Include

Thursday, December 8, 2016 1:30 p.m. to 3:00 p.m. Eastern

12:30 p.m. to 2:00 p.m. Central 11:30 a.m. to 1:00 p.m. Mountain 10:30 a.m. to 12:00 p.m. Pacific

Presented by:

Charles L. Plumb Courtney Bru

McAfee & Taft

This program has been approved for 1.5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI website at www.hrci.org.

Employee Handbook Updates for 2017: A Critical Refresher on the Most

Current Changes to Include Presented by:

Charles L. Plumb Courtney Bru

McAfee & Taft

December 8, 2016

ADVANTAGES OF A HANDBOOKSome written policies are mandatory:– FMLA

– EEO

– Harassment

– Drug and alcohol testing

Orientation toolCommunicate procedures and guidelines

2

Improves consistency

Train supervisors and managers

Trigger periodic review/updating of policies and practices

Defending against claims

3

POTENTIAL PROBLEMS WITH A HANDBOOK

No way to address every possibilityObsolete and failing to updateFailing to follow handbook provisions“Supervisor’s manual” not consistent with handbook distributed to employeesChallenge for multistate employers

√ Don’t include policies you won’t/can’t consistently apply.

4

HOW TO CRAFT OR REVIEW A HANDBOOK

Outside Resources– HR professional groups

– Other employers

– Internet

– What are the new legal requirements?

5

Include supervisors and managers in the process– HR taking the lead

– What is working/not working?

– What issues have arisen?

– Actual practices different from what our policies say

– Possibility: Survey to managers and supervisors

6

Importance of periodic reviews and updates– Are some policies outdated?

– Adjustments due to changes in the law

– Practical changes – “it’s not working as we intended”

7

HOW AND WHEN THE HANDBOOK IS COMMUNICATED TO THE EMPLOYEESPart of the orientation processAccess – multiple methods = undeniable availabilityElectronic and hardcopy handbooks – not necessarily exclusiveA library of previous handbooks and policies

8

EMPLOYMENT-AT-WILL STATEMENT (PROMINENT)

No assurance of employment for any specified period.End relationship at any time, for any reason or no reasonContract disclaimerOnly employment agreements or contracts: in writing, signed by the employee and [CEO, President, etc]

√ Don’t use terms such as “permanent” or “long term”

√ At-will disclaimer included on employment application

9

HANDBOOK STATUSEmployer’s right to modify– To issue new policies that supersede previous policies

No ability of a supervisor or employee to modify Signed acknowledgment by employee– Sign and date confirming receipt and review

– Understand its content and have an (ongoing) opportunity to ask any questions

10

EQUAL EMPLOYMENT/NON-DISCRIMINATION

General EEO PolicyNon-discrimination clause– Commitment to non-discrimination, diversity

– All terms and conditions of employment

– Address applicable federal, state and local non-discrimination laws

11

Establish a mechanism to report (in good faith) discriminatory or harassing conditions– Fair and prompt investigation and resolution

– Anti-retaliation

12

SEXUAL HARASSMENT POLICYAbsolute prohibition of both types of sexual harassment: quid pro quo and hostile environment– Explanation and definition of sexual harassment

– Include conduct occurring after hours and off premises

Complaint procedureInvestigation assurancesAnti-retaliation

13

DISABILITIES POLICYNon-discrimination clause

Reasonable accommodation (that does not impose an undue hardship) provided to qualified, disabled individuals– Encourage employee to raise the need for reasonable

accommodations

– Examples of potential reasonable accommodations

Complaint procedure

Investigation assurances

Anti-retaliation

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RELIGIOUS OBSERVANCES AND PRACTICES

√ As a stand-alone policy or incorporated within the General EEO Policy

Non-discrimination clause and commitment to reasonable accommodations of individuals’ religious beliefs, observances and practicesRelates to “sincere belief”

15

ABSENCES FROM WORK AND LEAVE

PTO, VACATION OR SICK LEAVE POLICIESPTO versus specific leave– Pool all paid leave into one bank

– No distinction between types of leave

– Advantages to employerEasier to administer

Can reduce amount of unscheduled leave

Attractive to applicants

Improve employee morale

√ But, lose some ability to monitor/police leave usage16

Issues common to all PTO, vacation and sick leave policy– Does your state have specific legal requirements?

36 states and municipalities have adopted paid sick leave laws

Federal contractors: seven days of paid sick leave each year

– Define eligibility

– Explain how leave accrues

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– In what increments may it be used?

– Notification or scheduling requirementsAdvance notice or approval

Emergency or short notice

Treatment of no call/no show

– Documentation requirements

– Year-to-year carry overBuyback?

18

– How does leave interact with other policies?

– Violation (or abuse) of leave and attendance standard may be grounds for discipline/termination

– “Good attendance awards”

– Payment at termination – accrued/unused leave

19

FMLA POLICY√ Formalized, written (electronic) and distributed

Employee eligibilityReasons employees may take FMLA LeaveChoose and state 12 month period of 12 weeks of leave– Fixed or “rolling”

Leave amounts available – medical, family and military

20

– Applies to Workers Comp, STD and LTD absences

Employee notice and paperwork obligations– Notice of need

– Scheduling obligations

– Medical or military certification requirements

Pay issues– Unpaid, but is there mandatory application of

PTO/paid leave

21

Continuation of health plan benefits

Periodic status updates

Reinstatement right and necessity of fitness work report

22

OVERTIME

Understand federal and state overtime requirements– “Intend to comply with the Fair Labor Standards Act

and [STATE] laws”

– Discuss non-exempt and non-exempt classifications

23

Obligations for accurately recording time worked

May be required to work additional hours and/or days in addition to their regularly scheduled hours

May not work additional hours/overtime, unless and except with prior authorization

Telecommuting/electronic devices tied to the employer’s communications

24

OUTSIDE EMPLOYMENTPrimary employment – must devote full time, attention and efforts“Moonlighting” Issues– Detracts from performance

– Attendance declines

– Conflicts of interest

– On-the-job injuries

– FMLA policy – No work on secondary employment while on FMLA Leave

25

PERSONNEL FILES AND DOCUMENTS

Types of records which can be reviewed– Property of the employer

Employee’s right to reviewEmployee’s right to obtain copiesEmployee’s ability to correct or add response/explanation

26

DRUG AND ALCOHOL TESTING√ With exception of federally required testing

(e.g.: DOT) controlled by state laws√ Must treat process and results as medical

informationMulti-state employer optionsCommon elements– Must be in writing; distribution requirement

– Who is subject to testing

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– What substances are being tested

– What circumstances enable the employer to test –OSHA’s challenge to post-accident testing

– Right to search work area, vehicles, belongings

– Testing methods or techniques

– Appeal or review of process

– Consequences of failure to cooperate, and/or positive tests

– Evolving as drugs and testing methods evolve

28

WORKPLACE VIOLENCE POLICY

Address a wide range of issues in addition to physical violence– Threats, menacing, bullying, harassing

Include third party acting violently at the workplace (not just co-workers)A “no tolerance” standard

29

Include a weapons policy– Covering guns +

– Bans/limitations – subject to state laws

– Applicable to vehicles

– When on customer’s, client’s, business associate’s property

30

SEARCH POLICYNeed to search– Potential violent act

– Missing property or money

– Contraband, including drugs or alcohol

– Investigating performance or misconduct

Breadth of employer’s right to search– Work area, belongings, vehicles in the workplace or

accompanying employee in the course of work

31

No expectation of privacyAcknowledgement and consentIncorporate notice of right to conduct surveillancePolicies that provide for “reasonable” searches

32

EMPLOYEE CONDUCT√ Should address job performance and

personal conduct√ Can include after hours and off-site conduct

and behaviorProvide examples – not an exclusive list– Violating any policies

– Unsatisfactory job performance

– Failure to cooperate; failure to follow instructions

33

– Harmful to the employer or its interests

– Effect of including a “for cause” or “good cause” or “just cause” standard

Concept of progressive discipline– Elevating severity of discipline as performance or conduct issues

continue

– Chance to solve problems

– Fairness factor

– Improved documentation process

– Option – apply the concept of progressive discipline, but preserve employer’s ability to match level of discipline with seriousness of the breach

34

TECHNOLOGY AND SOCIAL MEDIA

Employer’s ownership of its electronic communication system and devices– Define broadly

– Any information employee chooses to transmit through or store with employer

– Include personally-owned devices when used for work purposes (BYOD)

– Intent to monitor – no expectation of privacy

35

Other policies applyInclude after hours, off-site communicationsIncluding prohibited actions– Offensive, unprofessional, inappropriate

– Harmful to the interests/reputation of the employer, its employees or business associate

– Adversely affects productivity or employee performance of responsibilities

36

COMPLAINT/RESOLUTION POLICY

Not limited to EEO/harassmentEncourage reporting Alternative ways to raise– Multi step or appeal and review

– Anonymous or third party option

37

NLRA AND EMPLOYER POLICIES

National Labor Relations Act (“NLRA”) is enforced by the National Labor Relations Board (“NLRB”)NLRA’s Section 7 Rights for Employees– To discuss wages, hours and other terms and

conditions of employment

– “Concerted activity”

Section 7’s Concerted Activity Rights apply to union and non-union workplaces

38

NLRB Trend– Increased application and enforcement against non-

union employers

– Contend that employee handbook or policies violate Section 7’s Concerted Activity Rights

Policies recently challenged by the NLRB– Confidentiality or proprietary information

39

– Employee conductDo not impair or injury reputation of the company, employer or worker

Do not defame or slander or include discriminatory comments about the Company

Actions that would be harmful to the Company’s interests or its reputation

– Communication with third partiesEmployee not authorized to speak to the media

All inquiries about the Company should be subject to [CORPORATE OFFICE]

40

– Restrictions on audio recordings or photograph

Unauthorized photographs or audio recordings are prohibited

Banning all recording devices on cell phones

– Requiring employees to maintain confidentiality of internal investigation

– Social media – a result of the “Facebook Firings”

Issuance of NLRB guidelines

Be specific; not general/blanket prohibitions

Provide examples of inappropriate postings

Model, NLRB approved policy

41

CLOSING THOUGHTSPeriodic review importantInvite others in crafting and review processesTrain and familiarize supervisors with the handbook.Apply consistently.

42

Charlie PlumbCourtney BruMcAfee & Taft

Williams Tower II2 West Second Street, Suite 1100

Tulsa, OK 74103(918)587-0000

charlie.plumb@mcafeetaft.comcourtney.bru@mcafeetaft.com

43

Disclaimers

*This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

Charlie Plumb is a shareholder and practice group leader at McAfee & Taft. He represents management in all phases of employment law and labor relations. Much of his practice is dedicated to counseling employers on

compliance with a broad range of state and federal employment laws and regulations and educating management on best practices for avoiding disputes arising from the employer/employee relationship. He also has extensive litigation experience before federal and state courts, regulatory and administrative agencies, and in arbitration matters involving claims of discrimination, wrongful discharge, retaliatory discharge, breach of contract, and constitutional law violations. As part of his labor practice, Mr. Plumb represents unionized employers in collective bargaining negotiations with labor unions, arbitrates grievances, and defends management against a variety of claims before the National Labor Relations Board and Department of Justice and in state and federal courts.

Courtney Bru is a shareholder at McAfee & Taft. Ms. Bru’s practice is focused on the representation of employers in state and federal labor and employment matters and

other issues affecting the workplace. In addition to having extensive experience representing management in all phases of litigation before state and federal courts and regulatory and administrative agencies, a significant portion of her practice is devoted to counseling and training management and human resources professionals on the best practices for reducing risk, avoiding litigation, and maintaining a productive workforce.

Charles L. Plumb

Courtney Bru

Ms. Bru has extensive experience representing local, regional and national clients with respect to claims and potential claims arising from the Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), National Labor Relations Act (NLRA), Title VII of the Civil Rights Act of 1964, wage and hour issues arising under various state laws, and discrimination and retaliation issues arising under various state and federal laws. In addition, she frequently assists employers with day-to-day issues, including interviewing and hiring, discipline and termination, employment and nonsolicitation agreements, workplace policies and handbooks, drug and alcohol testing, employee classification, internal investigations, audits by state and federal agencies, anti-harassment and anti-discrimination training, reductions in force, and severance programs.