On The GC's Red-Hot Crisis Management To-Do List: Review that employee handbook – and soon!

Thursday, September 3, 2015 - 11:43
Brian F. Jackson

Brian F. Jackson

Employee handbooks and personnel policy manuals have been evolving over the past two decades. The evolution may be most visible in the modern-day format of the handbook: what once was a collection of policies in a three-ring binder now may be a link on an intranet, where single policies can be accessed with ease and updated without the need to reissue an entire document.

The tone of employee handbooks also has evolved. The document itself is less a list of "thou shalt nots" as much as it is a communicative tool used in recruitment and retention. Moreover, for non-union employers, the handbook is drafted to minimize harsh or equivocating language that a union may cite as proof that employees have no solid promises of salary or benefits.

Finally, the content of employee handbooks has expanded over that time as well. The Americans with Disabilities Act (ADA) in 1990 and the Family and Medical Leave Act (FMLA) in 1993 both created new employee rights and corresponding employee responsibilities that are best explained in the employee handbook. When these laws subsequently were amended or clarified by regulation, the corresponding handbook policies were revised and updated as well. The United States Supreme Court's decisions in Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) clarified the burdens of proof and defenses available in claims of harassment under Title VII of the Civil Rights Act of 1964, and, in the process, substantially impacted the required language for a compliant discriminatory harassment policy. Even the United States Department of Labor impacted the content of the employee handbook. The creation of an exempt employee deduction "safe harbor" in 2004 required employers to consider adding an “improper deductions from salary” policy to the handbook.     

These changes and evolutions occurred somewhat gradually, so that companies could maintain a practice of reviewing and updating the employee handbook every few years. As a result, rarely in the last twenty years was employee handbook review a task that was likely to be listed on in-house counsel's red-hot crisis management to-do list. That, unfortunately, is no longer the case.

Technological advancements present both new opportunities and new risks in the workplace. Both require a consideration of whether employees understand their employer's expectations for proper use of technology. These expectations are best summarized in new or enhanced policies that are part of employee handbook, version 2015. Additionally, employee handbook provisions are drawing increased attention from federal agencies, most notably the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). Both agencies have been scrutinizing workplace policies and identifying those that they assert are unlawful under the laws that they are charged with administering.

All of these factors strongly suggest that if you haven't commissioned a full-blown employee handbook review this year, you should do so at the earliest opportunity – and certainly before year-end. Here are our suggestions on how to get started:

Who Should Be Involved?

The review team should include a new member. While legal, human resources and benefits representatives still have primary responsibility for the project, consider adding someone from information technology. As you will see below, IT may have some valuable insights into some of the required areas of concern.

Task #1: Determine Whether You Need a "Bring Your Own Device" Policy

Nearly 70 percent of millennials and 31 percent of baby boomers surveyed last year by TrackVia admitted to using their own devices and applications for work, without regard for whether their employer had a policy permitting it. There are great advantages to allowing employees to access employer computer systems from their own smartphones, tablets and laptops. Being able to access work programs remotely can boost productivity, enhance client and customer communications and improve work-life balance. Moreover, many employees appreciate the convenience of managing work and personal lives with one device.

There are also risks that must be considered:

  • Potential loss of employer control over devices.
  • Unintended overtime for non-exempt employees who may take it upon themselves to get in extra work.
  • Threats to confidential data and the integrity of the employer's computer systems arising from loss of device, inadequate security programs and employee separations.

The most significant risk, however, stems from a failure to reach company-wide decisions on whether to allow employees to use their own devices and, if so, under what circumstances. The decision-making process requires a consideration of the following, and the ultimate resolutions should be set forth in a Bring Your Own Device, or BYOD, policy that is set forth in your new-and-improved employee handbook:

  • Who will be eligible to use their own devices to access company computer systems?
  • What devices, platforms and software will be supported?
  • What happens if an employee loses or misuses her device? What happens upon separation from employment?
  • What level of monitoring will an employer reserve with respect to an employee's use of a personal device to perform work?
  • What financial support will the employer provide for data plans, or for purchase or repair of a device?
Task #2: Determine Whether You Have a Compliant Social Media Policy

Many companies spend significant resources tracking what is posted on social media relating to their products, brands and services. Mining customer trends and sentiments is critical. But what can an employer do with respect to its own employees' Facebook, Twitter, Pinterest or LinkedIn posts that relate to the same products, brands or services – or even workplace issues? The answer to that question is both complex and evolving, particularly in light of the National Labor Relations Board’s (NLRB) weighing in on this subject.  

Employers may be concerned about how their own employees’ posts may adversely impact their brand and reputation or adversely impact work relationships. The National Labor Relations Act's protections of concerted employee activity, however, substantially limit an employer's ability to maintain a social media policy that prohibits all unflattering commentary. So even if you were ahead of the curve by adopting a social media policy a few years ago, it is high time to revisit it in light of recent NLRB decisions and guidance.

Task #3: Review Those Tried and True Policies That Relate to Employee Conduct:
If You Don't, There's a Chance the NLRB Will!

The NLRB's interest in employee handbook policies goes well beyond social media issues. On March 18, 2015, NLRB general counsel Richard F. Griffin, Jr. issued Memorandum GC 15-04, which summarized recent enforcement action against employers based on the maintenance of policies that are viewed as having a chilling effect on employees' rights. As the general counsel stated, “[a]lthough I believe that most employers do not draft their employee handbooks with the object of prohibiting or restricting conduct protected by the National Labor Relations Act, the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act.”

The array of rules and policies that may be deemed by the NLRB as overbroad or vague and therefore potentially infringing upon employee rights is staggering:

  • Confidentiality rules that limit discussion of customer information, employee information or company confidential information.
  • General personal conduct and civility rules that encourage employees to be respectful toward supervisors and co-workers.
  • Rules restricting employee use of company logos, copyrights and trademarks, or limiting the use of photographs or videos on company property.
  • Conflict-of-interest policies.

The compliance danger for employers is rooted in the fact that, because they appear to be such basic pronouncements on expected workplace conduct, many of these policies may not have been substantively reviewed for many years.   

Task #4: Don't Forget About the EEOC: Review Those Leave Policies

Employers have been living with the ADA and FMLA for more than 20 years. That an employee with health issues may have a specific leave right under the FMLA or be entitled to even more time off under the ADA as a reasonable accommodation are not new concepts. Recognizing these obligations, many employers have promulgated unpaid leave policies that are more generous than what may be required under state and federal leave laws. 

At some point, even these generous employers want consistency and predictability, so leave policies often state a maximum duration, after which an employee who is unable to return to work will be separated. It might be a period of 26 weeks to correspond with an employer-provided short-term disability benefit. It may be even more generous: Sears Roebuck, for example, had a 12-month maximum leave entitlement before it drew the attention of the EEOC.

The underlying employee handbook issue is one that has been branded "inflexible leave," and the EEOC's position with respect to even generous leave policies is this: additional unpaid leave beyond even an employer's stated maximum may be a reasonable accommodation if it would not impose an undue hardship on the employer. Employers therefore should ensure that their leave policies specifically provide that employer and employee will engage in an interactive process to determine whether, and how much, additional unpaid leave may be required after an employee exhausts what may be a standard maximum entitlement.

So, if you haven't undertaken a full-blown review in the last several months, it's high time to get the handbook review project on a few people's fall to-do list.

Brian F. Jackson is co-chair of the Labor and Employment Group and a member of the Management Committee at McNees Wallace & Nurick LLC. He can be reached at bjackson@mwn.com.