Issues & Overview Workplace Policies: An Absolute Necessity

Monday, November 1, 2004 - 01:00

Mary Ann B. Oakley
Holland & Knight LLP

Any employer that fails to maintain adequate and updated workplace policies is asking for trouble. Such policies can serve as an important part of an employer's defense to litigation in many instances. Periodic reviews are essential to keep policies up to date and to be sure that all areas are covered adequately.

Almost all employers now maintain a policy against sexual harassment that complies with the 1998 decisions of the U.S. Supreme Court. Everyone is aware of the need to prohibit such harassment, to train employees (especially managers) about the policy, to establish a means of reporting such harassment, to investigate complaints promptly and punish wrongdoing appropriately, and to maintain a strong prohibition against retaliation.

Surprisingly, many employers do not maintain policies that also cover other prohibited forms of harassment: racial, national origin, religious, age, disability. Although the United States Supreme Court has as yet decided no case squarely involving any of these protected categories, the lower courts have made it clear that these requirements apply to other protected categories as well as to gender. Any employer that has not updated an anti-harassment policy is asking for trouble. Every employee should be required to sign a form stating that he or she has read the policy, understands it, and agrees to abide by it. A copy of that form should be placed in each employee's personnel file.

Once such policies are in place, training is imperative. Every supervisor and manager should be required to attend such training and a record maintained of attendance. Managers should be trained separately from non-managers, and everyone should be encouraged to report any prohibited harassment that they observe. All employees should understand that there will be no retaliation and that all information will be kept strictly confidential to the extent possible.

Another policy which too many employers have failed to implement is one entitling them to the Safe Harbor provisions set forth in the new regulations governing exemptions under the Fair Labor Standards Act. As with the anti-harassment policy, this one can provide an important defense if litigation arises. As of August 23, 2004, the new white collar exemption rules to the Fair Labor Standards Act (FLSA) went into effect. While these rules do not change the way of computing overtime pay, they provide a "safe harbor" for those employers who implement certain written policies and procedures.

The "safe harbor" provision adds a new level to the "window of correction" that is already in the FLSA regulations. An employer will not lose an otherwise valid white collar exemption for improper salary deductions if the employer does not violate the regulations repeatedly or willfully, or continue to make deductions after receiving a complaint, and if the employer implements and enforces a written policy prohibiting improper deductions. If there is no such policy, the exemption can be lost, during the time period in which improper deductions were made and for all employees in the same job classification who worked for the manager responsible for improper deductions.

Such a policy should include an explanation of the salary program for exempt employees. The policy must provide that deductions from the salary of an exempt employee are generally prohibited and describe the exceptions to that rule, as well as define improper deductions.

Along with the definitions of proper and improper deductions, the policy must specifically prohibit improper deductions and state that improper deductions are a serious violation of company policy. It must contain a complaint mechanism for employees to report possible violations. Those complaints should, when possible, be made or referred to human resources and should be investigated promptly. Of course, the Fair Labor Standards Act, like Title VII, prohibits retaliation against an employee for making a complaint, and the wise employer will so state in the policy.

The policy must be clearly communicated to all employees. The best way to do so, and to provide proof of doing so if a Department of Labor investigation or a lawsuit should arise, is to have the employees sign one copy to be placed in their personnel files. The same procedure should be used with each new hire. Each employee should be strongly encouraged, orally and in writing, to report promptly any problems with pay as soon as he or she becomes aware of the problem. Reminders during employee or shift meetings and other appropriate times (newsletters, inserts in pay checks, for example) are helpful tools to communicate the policy clearly.

Unfortunately, today a climate of violence exists that can spill over into the workplace. The instances of employees and former employees "going postal" and the tragic results have made headlines and appeared on television. Security is a major concern, whether it be from these employees, a battering spouse, or outbursts of uncontrollable anger in the workplace.

Every workplace needs a policy against violence - with a zero tolerance component. Any employee who demonstrates violent behavior on the job is a tragedy waiting to happen. Even if he or she is let go and files a discrimination claim, that result is preferable to death or serious injury. Having a designated manager or human resources employee, or an outside consultant, who is trained to step into a potentially violent situation and defuse it can save all kinds of problems in the workplace. Adequate security, at least temporarily, is important once a potentially violent employee is let go or a battering spouse or significant other threatens an employee in the workplace. The expense involved could be far less than the cost of death or serious injury of an employee.

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