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It’s Time to Review Your Employee Handbook

Handbooks are legal documents, so you need to be sure that yours is compliant, up to date and matches your workplace practices.
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it’s time to review your employee handbook

Whether you have one employee or hundreds, your company should have an employee handbook containing policies that apply to your workforce. These policies establish the general guidelines that serve as the basis for specific procedures and practices—which are best kept separately as they tend to need updating more frequently.

Properly drafted handbooks communicate your expectations for employees, as well as their rights and benefits; establish guidelines for consistency in future situations, including those that may not occur very often; give employees and supervisors initial guidance when HR or leadership cannot be reached; and can provide legal and safe harbor protections for your company.

Handbooks are legal documents, so you need to be sure that yours is compliant, up to date and matches your workplace practices. You also need to have documentation to show that you have told employees and supervisors that they are expected to follow its policies consistently. If you are challenged in court or through a complaint, you will be held accountable for what is—and is not—in your handbook. Not having a handbook at all can be used to show a lack of consistency in your practices.

A handbook should be reviewed and updated every year or two, or when there are major federal and state regulatory changes. There have been some changes throughout 2023, so if you have not updated your handbook in the past six months, now is the time.

Here are some major regulatory changes that should be reflected in your handbook:

1) National Labor Relations Board (NLRB) decision in Stericycle Inc. Perhaps the biggest impact is one that few employers may have paid attention to. While the National Labor Relations Act (NLRA) mostly affects unionized workplaces, some of its provisions also serve to protect non-unionized employees as well.

The most significant may be Section 7, which protects the rights of all employees to protected concerted activity when aimed at improving the workplace or working conditions for themselves or others. While it does not allow employees to violate company policies on confidentiality, harassment, or workplace violence, it does protect certain employee speech, such as sharing their wages, complaining on social media about their working conditions, or loudly expressing frustration about or to management.

Past NLRB decisions established that employment policies must be drafted so that they did not specifically violate or appear to “chill" these rights, impacting wide-ranging policies, including confidentiality; use of social media; solicitation and distribution; use of computers, internet and email; and employment at will.

However, the NLRB's recent decision in Stericycle Inc. expands on this by stating that if a policy could have the “tendency to chill" the protected concerted activity of its employees, it is “presumptively unlawful." An employer would have to prove that more narrowly drafted language would not be sufficient to protect its “legitimate and substantial business interest."

Given the change that employer handbooks will be read with the presumption that they are drafted to chill employee rights under Section 7, all policies should be reviewed and updated to ensure that their language is properly drafted so no such presumption can be made.

2) Federal laws, regulations and legal opinions. Recently, there have also been other federal laws, regulations and legal opinions issued on the federal level which impact all companies and need to be addressed in your handbook.

The new Pump for Nursing Mother Act (PUMP Act), signed into law at the very end of 2022, provides more protections for nursing employees to pump breastmilk at work by increasing the number of employees who are protected, as well as the requirements for offering breaks and creating a private space for these employees to use.

Further, once the guidance for the Pregnant Workers Fairness Act (PWFA) is finalized, it is expected to make significant changes to how companies handle workers who are pregnant, just gave birth, or are having fertility issues. This will require updating policies and procedures in most companies.

Additionally, the Equal Employment Opportunity Commission (EEOC) updated the language on its “Know Your Rights" poster, which should be reflected in your equal employment opportunity and discrimination policies. This includes adding as protected groups sexual orientation, gender identity, and employees that file or participate in a workplace investigation.

The EEOC also recently proposed new enforcement guidance on harassment in the workplace which, among many other things, reinforces the importance of having a clear, strong non-harassment and sexual harassment policy that contains a reasonable reporting procedure and is followed consistently, with complaints investigated quickly and thoroughly.

3) State laws. Handbooks also need to cover state laws. This may result in a seamless integration for companies that have employees working in one state. However, companies that have employees working in multiple states must draft their handbooks accordingly.

Not only does this serve as a practical way to communicate state-level rights and protections to employees, but some laws specifically require that they are included in an employee handbook. Because of this, a generic statement that the company adheres to state laws is not always an easy way of compliance.

While the federal government has only passed limited legislation, many states have seen expansive legislative changes that can impact your handbook. Some of these legislative trends that need to be considered include protected groups, such as natural hair and protective hairstyles; restrictive covenants like noncompete and non-disclosure agreements; the right to carry firearms; legalization of marijuana; paid sick or personal time; paid and unpaid family and medical leave; and other protected time off, such as voting, emergency response, and victims of domestic violence or other crimes.

Some states have very specific criteria for compliant policies. For example, New York offers model policies for harassment prevention and expressing breastmilk in the workplace due to the specific criteria, while also requiring all employers to include their New York Health and Essential Rights Act (NY HERO Act) plan in their handbook.

4) Legal opinions and decisions. Changes also come through the legal process, with courts issuing legal decisions that impact all employers. While this is not as prominent, these impacts could be just as important, such as how the U.S. Supreme Court decisions in Faragher v. City of Boca Raton and Burlington Industries Inc. v. Ellerth impact today's harassment and sexual harassment language and training.

Recent legal decisions have suggested changes to confidentiality language to incorporate the Defend Trade Secrets Act and to language regarding the employer's right to monitor an employee's emails, phone calls and other communications while removing the assumed obligation to do so.

Make sure that you add updating your handbook to your to-do list now—and repeatedly every year. Don't try to navigate all of these legislative and legal requirements on your own. Consult an HR consultant or employment attorney to draft and review it for you.

Paige McAllister is vice president, HR compliance, The Workplace Advisors. The Workplace Advisors is the endorsed HR partner of Big “I" Hires, the Independent Insurance Agents of Virginia, Big I New York, and Big I New Jersey.

Reach out to The Workplace Advisors via email or 877-660-6400 if you have questions about employee handbooks. Its HR Support Plan includes a fully customized employee handbook tailored to address your company's unique policies and practices. 

Wednesday, December 27, 2023
Recruiting, Hiring & Training