Employment Policies, Practices, and Training:

What To Do; What To Do Away With

Presented byWhitney R. Brown

Lehr Middlebrooks Vreeland & Thompson, P.C.March 5, 2021

Your Workplace is our Work® Copyright 2021 Lehr Middlebrooks Vreeland & Thompson, P.C. All rights reserved.

Reproduction or use of these materials, including for in-house training, without authorization of the authors is prohibited.

About Your Presenter

EducationVanderbilt University Law School, J.D.Birmingham-Southern College, B.A.Bar AdmissionsAlabama, Mississippi, and related federal admissions.Recent(ish) Writing and Speaking• Panelist, HR Works Podcast: No

Vaccine or I Quit, https://hrdailyadvisor.blr.com/podcast/hr-works-no-vaccine-or-i-quit/

• Refusal to Participate in Investigation Bars ADA Claim, Mar. 2019, SHRM, https://bit.ly/2kqGm4G. 2

wbrown@lmvtlaw.com(205) 323-9274

Essential Policies, Practices, and Training

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Policies and Practices to Add

EEO Policies and Training that Work: Harassment

• At a minimum, written policies must:– Be circulated and available to all employees

throughout their employment.– Define harassment in a way that includes all legally-

recognized forms of harassment and all protected classes.

– Be understandable to and usable by the least educated and advantaged subset of the workforce.

– Include two separate reporting avenues.– Include a strong commitment to non-retaliation.

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Policies and Practices to Add

EEO Policies and Training that Work: Harassment

• Written policies should:– Be specifically acknowledged at orientation and at

least at one training/employee-wide meeting per year.• Top management (not just HR) should affirm this

commitment on an annual or more regular basis.– Be a subject of enhanced training for any employees

in the reporting chain.– Define harassment in a way that goes well beyond

unlawful harassment and prohibits bullying regardless of protected class status.

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Policies and Practices to Add

EEO Policies and Training that Work: Harassment

• Written policies should:– Define harassment in a way that applies to behavior

to and from third parties.– Explicitly prohibit electronic harassment and be

expressly incorporated into any technology, e-mail, mobile device, or social media policies.

– Be one of the first policies in the handbook.

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Policies and Practices to Add

EEO Policies and Training that Work: Harassment

• Best training practices:– Do it live.– Commit resources for a third party trainer at least

every other year.– No one is exempt from training. If there are multiple

training sessions, at least one member of the executive team attends each session.

– Top leaders promote, introduce, and participate in the training.

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Policies and Practices to Add

EEO Policies and Training that Work: Harassment

• Best training practices:– Commit the time for case studies, role-playing, and/or

group exercises.– Go in-depth, as appropriate for your audience. This

could include talking about sensitivity for micro-aggression and the insidious effects that even positive stereotypes can have.

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Policies and Practices to Add

EEO Policies and Training that Work: Harassment

• Other Thoughts– Don’t phrase or commit to a zero tolerance approach– Don’t focus on sexual harassment to the exclusion of

other forms of harassment– Train on in-group harassment and “reverse”

harassment

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Policies and Practices to Add

EEO Policies and Training that Work: Reasonable Accommodation

• Policy should:– Designate point person for requests– Reference non-retaliation policy– Affirm Company’s right to request verification– Affirm all medical information stored in separate

medical files

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Policies and Practices to Add

Employee File Audit• Security• Separate binder for I-9s• If using self-identification forms, store separately• Separate Medical File• Separate FMLA File• Separate W/C File• Separate Legal File• Separate Investigations File• Embrace or Eliminate “Shadow Files”

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Policies and Practices to Add

Employee File Audit• Create checklist of documents each file should

have.• Re-file mis-filed documents.• Never backdate a missing document; but

generally okay to replace missing documents with a cover explanation.

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Policies and Practices to Add

Idiot-Proof Disciplinary Action Form• Print names of employee being written up and

the one doing the writing up• Fields for all relevant dates: date of event, date

form written, date given to employee.• Force supervisor to answer question of whether

employee has disciplinary history.

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Policies and Practices to Add

Documentation Training• Shun industry-speak and company jargon.• Provide background information.• Use the active voice.• Write objectively.

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Policies and Practices to Add

Telework Arrangements• Security/Confidentiality: VPN, passwords, antivirus

software, locations where work can and cannot be performed.

• Eligibility: – Cannot be strictly prohibited based on seniority or other non-job-

function factors because telework may be a reasonable accommodation for employees with disabilities.

• Commitment: Employee still owes duty of loyalty and expected to give full time attention.

• Schedule: Telework does not have to mean “work when you can/want.”– If flexible, are there still must-work times or must-attend

meetings? 16

Policies and Practices to Add

Telework Arrangements• Duration: Is it emergent? Temporary? Ongoing?

– Plan regular check-ins at 30-90 day intervals specifically to evaluate the effectiveness of telework arrangement.

• Are certain functions being eliminated?• Timekeeping:

– Non-exempt employees must keep rigorous records and be specifically instructed not to work OT/not to work after scheduled hours without authorization and not to interpret after-hours requests as requirement/authorization to work after hours.

– Exempt employees must be trained not to cause work or create work after hours.

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Policies and Practices to Add

Telework Arrangements• Workspace expectations• Describe any equipment provided by the Company.

– And limit use to Company purposes.• Training: companies provide specific anti-phishing and

specific training.• Speak with broker about purchasing applicable cyber

coverage.

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Policies and Practices To Add

Model Language to Include in Telework Notification or Agreement based on

Emergent Circumstances

“Due to the unusual circumstances in our communitycaused by [COVID-19 or other emergent situation], we are[assigning/permitting] you to work remotely for a temporaryperiod [at our request and/or on a trial basis]. We are[assigning/permitting] remote work at this time even thoughsome of your job’s usual essential functions may not beable to be completed remotely.”

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Policies and Practices To Do Away With

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This Photo by Unknown Author is licensed under CC BY-SA-NC

Policies and Practices To Cut

Pay Confidentiality• Pay confidentiality policies violate Section 7 of

the NLRA.• Ditto to instructions/discipline for employees

sharing their own disciplinary and other work experiences.

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Policies and Practices To Cut

Paying Everyone by Salary• FLSA requires minimum wage and overtime be

paid to all workers except those who are “exempt.” Employer has the burden to prove the exemption.

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Policies and Practices To Cut

Paying Everyone by SalaryExcuse:• “Everyone here is happy and my pay is fair and well

above minimum wage.”Response:• But can you prove they never worked OT? Because the

overtime rate will be based on that high wage you’re paying.

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Policies and Practices To Cut

Paying Everyone by SalaryExcuse:• “I apply the administrative exemption to my

administrative assistant.”Response:• The administrative exemption has no application to

administrative assistants.• The administrative exemption:

– Salary or fee basis not less than $684 per week

– Primary duty must be the performance of office or non-manual work directly related to management; and

– Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

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Policies and Practices To Cut

Paying Everyone by SalaryExcuse:• “I can pay a fixed salary based on a fixed salary for

fluctuating workweek/diminishing overtime scheme I heard about.”

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Policies and Practices To Cut

Paying Everyone by SalaryResponse:• Does employee work a varying schedule?• Is employee’s pay ever docked for working fewer than 40

hours?• Does the employee ever work so many hours that the

base rate drops below minimum wage?• Do you pay overtime when over 40 hours are worked in

a week?• Do you have a written agreement?

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Policies and Practices To Cut

“We Don’t Pay for Unauthorized OT”• Actually, you probably have to.• But, you can discipline straight up to termination

for it.

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Policies and Practices To Cut

Automatic Medical Terminations• Example: “If an employee is unable to return to

work after [FMLA/30-day medical leave/etc.], then their employment will be considered a medical resignation and they will be eligible for rehire.”

• Problem?• Violates ADA’s requirement that employer engage in

a flexible interactive process of reasonable accommodation.

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Policies and Practices To Cut

“We don’t provide light duty”/ “Light duty is for workers’ comp only”

• Problem?– Shuts down the reasonable accommodation process.

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Policies and Practices To Cut

Application Questions To Cut• Asking about pay/salary history• Asking about arrests (as opposed to convictions)• Asking about prior injuries or lawsuits• Date of Birth / Year Graduated High School• Social Security Number

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A Policy and Practice to …Delete? Modify? Create?

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Policy and Practice to ???

Pandemic Response Leave(s)• FFCRA leaves are currently optional, but tax

credits expire on 3/31/2021.• Current House Relief Bill leaves FFCRA leaves

as optional, with some tweaks.• Employers can provide EPSL, EFMLA, both, or

neither.

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