As reported in recent newsletters, there have been significant legal changes that will affect your organization’s human resources and employment policies. Recent regulatory revisions to the Family Medical Leave Act, the Occupational Safety and Health Act, and the Age Discrimination in Employment Act, as well as a major National Labor Relations Board decision, will affect the manner in which employers run their businesses.
Conducting an audit of your organization’s human resources/employment policies and procedures is vital to ensuring compliance with the laws governing your business. Undertaking such an audit allows an employer to identify statutory violations in an attempt to prevent unlawful acts before they turn into litigation, and also promotes consistency in the workplace, effectiveness of the human resources function, and improves employee morale. The first step in any such audit is to undertake a review of your employee handbook, the document that acts as your “mouthpiece” in the workplace. As a result of recent regulatory changes, employers should take the opportunity to conduct an audit or “checkup” of their employee handbook to ensure compliance with these revisions. Below is a ten point checklist of issues to keep in mind when auditing your handbook and other employment-related documents:
1. Review All Leave Policies: Conduct a review of your leave of absence policies, including your Family Medical Leave Act (FMLA) policy. At a minimum, revisions should be made to your FMLA policy to ensure compliance with the most recent regulations regarding leave for family members of those who are serving in the Armed Forces. Employers should also post the new FMLA notice, which may be found on the U.S. Department of Labor’s website.
2. Review Solicitation and Electronic Communications Policies: In light of the National Labor Relations Board’s decision in Guard Publishing Co. that employees do not have the unfettered right to use an employer’s e-mail system for activities relating to union organizing or union business, employers should consider revising their non-solicitation policy to include language that makes it clear that employees do not have the right to use employer-owned equipment for purposes unrelated to their work.
3. Immigration Law Compliance: Review your immigration compliance documents, policies and procedures in light of the recent revisions to the I-9 form.
4. Conduct an Audit of Your EEO Policies: In the wake of the Supreme Court’s decision in Burlington Northern, employers should implement and enforce workplace guidelines that prohibit any form of retaliation. Employers should also:
• Review their EEO statements to confirm inclusion of all applicable federal, state, and locally protected classifications, and scope of protections provided to covered employees;
• Review harassment policies (both sexual and general) and update policies to ensure clear reporting guidelines; and
• Examine the adequacy of complaint and investigation procedures, especially as they apply to supervisors. It is important to provide an alternative reporting channel other than an employee’s supervisor for cases where the supervisor may be the source of the harassing or retaliating conduct.
5. At-Will Language: Review the adequacy of the “at-will” disclaimers in your handbook to ensure that other language in your handbook does not limit an employee’s at-will employment. Your disciplinary policy should not limit your ability to terminate an employee at any time and for any reason. It is well established in Pennsylvania that carefully drafted disclaimer language in a handbook will defeat a claim that an employer’s handbook imposes contractual obligations upon an employer. With the case law so clear in this area, there is simply no reason why all employers cannot have carefully drafted language that protects them from claims that an employee is not employed “at will,” or that the employer is somehow limited in taking appropriate disciplinary measures.
6. Dissemination Procedures and Acknowledgment Forms: Are all employees receiving copies of your policies and/or handbook? Providing electronic access to the employee handbook is acceptable, but consider whether this is adequate if you have employees without access to your intranet or to a computer. Do you have acknowledgment forms from all employees for receipt of the policies or handbook?
7. Wage and Hour Policies: Do your stated leave policies (e.g. jury, military, bereavement, personal, vacation) comply with the Fair Labor Standards Act? Does your handbook include a policy setting forth your commitment to compliance with the FLSA?
8. Company Safety Programs: Are you adequately informing your employees regarding safety issues in the workplace? Have you made your employees aware of their rights under workers’ compensation laws and the Pennsylvania Right to Know Law?
9. Job Descriptions: Although job descriptions should not generally be included in an employer’s handbook to allow employers the flexibility to update them as business needs change, employers should take the time to review job descriptions to ensure proper identification of “essential functions” and to ensure proper designation of exempt versus non-exempt employees. Job descriptions are perhaps the most underutilized of all “standard” employment-related documentation. This is unfortunate, because an established standard for each position enables the employer to clearly evaluate an employee’s job performance and, in the event of litigation, clearly explain why an employee did not meet the requirements of his or her position. Additionally, job descriptions are invaluable when determining exempt and non-exempt positions, thus ensuring compliance with the Fair Labor Standards Act. Finally, job descriptions are necessary when conducting reasonable accommodation/undue hardship evaluations under the Americans with Disabilities Act.
10. Review Company Security/Confidentiality Policies: Have the penalties for disclosure of confidential company information been made clear to employees? Have you set forth clear guidelines on how confidential information should be maintained and protected, even after an employee leaves the company?
A well-written handbook is an important first step to promoting a stable work environment and in defending against a myriad of employment-related legal claims. Employers who adopt written employment policies should ensure that all managerial and supervisory employees are fully familiar with those policies so that the practice of the workplace mirrors as closely as possible the policies of the workplace.