Category Archives: Employment Policies
Often times, policies in employee handbooks are longer and wordier than necessary. If for some reason your company was required to fit its entire employee handbook into a single haiku poem, here is what I would recommend:
We monitor your e-mails,
This haiku accomplishes three of the primary goals of employee handbooks. It informs employees that they are employed at-will. It warns them not to expect their company e-mails to be private. And by directing employees to report harassment, it preserves the employer’s ability to assert the Faragher-Ellerth affirmative defense.
Takeaway: While it’s not advisable to fit an entire employee handbook into a single haiku, employers should keep in mind that sometimes shorter policies are more effective and more likely to be read by employees.
When employees now talk about “lighting up,” they may not be referring to smoking a traditional cigarette. The latest development is the electronic cigarette or e-cigarette. These devices generally consist of a tube into which a cartridge is inserted that contains a chemical solution. The solution may or may not contain nicotine. When the battery-operated heating element in the device is “lit” and the user draws a breath through the device, the solution vaporizes and forms a mist simulating the sense of smoking. In common parlance, the practice of using an e-cigarette is known as “e-smoking” or “vaping.”
As a result of the increasing popularity and use of e-cigarettes, employers are determining whether or not their workplace policies and practices should permit smoking of e-cigarettes at work. A first point of reference in this determination is whether such use is permitted under state or local law. Some states, such as New Jersey, have amended their smoke-free laws to expressly prohibit the use of e-cigarettes in the workplace. Minnesota’s Clean Indoor Air Act has not been similarly amended. In 2010, the Minnesota legislature did, however, authorize municipalities to license and regulate the retail sale of e-cigarette devices. Minn. Stat. § 461.12, subd. 1. The Star Tribune reports that the St. Paul city council is currently debating this issue. Minnesota law also bans the sale of e-cigarettes to minors. Minn. Stat. § 609.6855.
Even if applicable law does not ban the use of e-cigarettes in the workplace, some employers are deciding not to allow their use in the workplace. Reasons for such a policy or practice include, for example, the difficulty of monitoring the use of tobacco cigarettes given the similar appearance of e-cigarettes, resulting confusion among tobacco smokers as to why smoking is restricted while e-cigarettes are allowed, and the unknown health effects of the vapor emitted by e-cigarettes.
Takeaway: Employers should determine whether applicable law in their area restricts the workplace use of e-cigarettes. If no such law exists, but an employer nonetheless determines that such use should be restricted, companies should amend their employee policies to clearly communicate that decision.
Many employers have implemented telecommuting policies and agreements to stay current with human resources trends, take advantage of communication technologies, improve retention and recruiting, and reduce overhead. Often it has worked brilliantly, with some estimates that 10% of the working population work from home at least one day a week.
But employment lawyers see that when telecommuting doesn’t work, it really doesn’t work. There can be many policy enforcement complications, performance review barriers, and estrangements from normal workplace discipline and personal development.
Given such complications, the bloom may be coming off the rose, a bit. Yahoo recently made news with its ban on telecommuting. Best Buy followed by imposing significant restrictions on its flexible work policy.
Perhaps now is a good time for employers to review their telecommuting or alternative work policies or individual agreements. When doing so, consider the following:
- Is the policy clear in its requirements and does it reflect current realities?
- Is the policy applied in a non-discriminatory way?
- Is the policy consistent with other policies such as timekeeping, work hours, and dependent care policies?
- Are there sufficient monitoring systems?
- Do performance reviews address the differences in alternative employment arrangements?
- Are there confidentiality protections?
- Are workers’ compensation, Fair Labor Standards Act, and state income tax reporting requirements addressed?
- What are the conditions for termination of the arrangements?
Takeaways: This is just a beginning checklist — but with the trend perhaps trending down, it may be the right time to double-check your policies and individual agreements. And use your legal counsel in the process (even if he or she is working from home!).
Yes, Minnesota law allows public or private employers to “establish policies that restrict the carry or possession of firearms by its employees while acting in the course and scope of employment.” Minn. Stat. § 624.714, Subd. 18. This is true even for employees who have lawful “conceal and carry” permits. However, an employer may not prohibit employees from carrying or possessing firearms in a “parking facility or parking area.”
Employers may also prohibit non-employees from bringing firearms into a Minnesota workplace by prominently posting a sign that reads “[COMPANY] BANS GUNS IN THESE PREMISES.” The lettering for the sign must be in black arial typeface at least 1.5 inches in height against a bright contrasting background that is at least 187 square inches in area. See Minn. Stat. § 624.714, Subd. 17.
Takeaways: Employers in Minnesota who are concerned about employees or non-employees potentially bringing guns into the workplace should adopt policies and post signs warning that guns are banned on the premises. Employers should take caution, however, that the ban against firearms does not extend to any parking areas or parking facilities.
When employers make written offers of employment or provide written employment policies to employees, such as Employee Handbooks, it is generally advisable for the employer to include a disclaimer stating that the employment is at-will. The purpose of an at-will disclaimer is to prevent an employee from mistakenly believing that he or she is entitled to employment for a specified period of time or is entitled to other protections with respect to the employment.
In most cases, the following language will be sufficient to disclaim any intent to alter the at-will employment relationship:
Employment with the Company is at will unless otherwise stated in a written agreement signed by the President of the Company. This means that either the Company or the employee can terminate the employment at any time and for any reason, with or without notice.
Employers should be careful, however, with respect to language that suggests “that the at-will employment relationship cannot be amended, modified, or altered in any way.” An administrative law judge recently held that language interfered with employees’ rights under Section 7 of the National Labor Relations Act.
Takeaway: The presumption that employment is at-will is an important protection for most employers. By including at-will employment disclaimers on key documents, employers can increase the odds that they will be able to benefit from the protections of the employment-at-will doctrine.
Much has been written about the National Labor Relations Board’s (the “NLRB”) attempt to promulgate union friendly rules like the “quickie” election rule and notice posting rule. However, for most American employers, the NLRB’s drive to scrutinize long-standing work rules should be more worrisome. While the NLRB is not necessarily attempting to make “new” law, it has found new ways to apply established standards. The mischief here is that the Board has articulated interpretations of the rules that it deems to be “reasonable,” that can best be described as attenuated, and with the result that longstanding and seemingly benign work rules were found to violate the NLRA.
Seizing upon its 1998 decision in Lafayette Park Hotel, the NLRB now appears to be looking for policies to scrutinize regardless of any alleged improper application, and may well declare them unlawful even absent any evidence of unlawful enforcement. 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999) (stating “[w]here the rules are likely to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an unfair labor practice, even absent evidence of enforcement.”). Thus, if the NLRB finds that an employee could “reasonably construe” an otherwise innocuous work rule in such a way as to limit that employee in pursuit of his or her rights under Section 7, the rule will be declared unlawful.
A review of recent decisions, demonstrates the wide net being cast by the NLRB:
• In American Red Cross Ariz. Blood Servs. Div., Case No. 28-CA-23443, an ALJ found the “at-will” provision in the employer’s employee handbook to interfere with employees’ Section 7 rights. The ALJ determined that an employee could reasonably construe the clause “I further agree that the at-will employment relationship cannot be amended modified or altered in any way” to require that the employee agree not to engage in any union organizing effort or enter any other agreement modifying the his or her at-will employment.
• In Banner Health System, 358 NLRB No. 93, the NLRB found that an agent of the employer violated the Act when conducting workplace investigations by advising complaining parties to refrain from discussing the matter with coworkers while the investigation was ongoing. The NLRB opined that an employer may lawfully advise employees to refrain from discussing an ongoing investigation when it has a legitimate business reason that outweighs the employees rights under Section 7. The NLRB rejected Banner Health’s argument that its rule served to protect the integrity of the investigation, stating that an employer must first determine whether witnesses need protection, evidence is in danger of spoliation, or there is potential for a cover-up.
Takeaways: By now, most employers have reviewed and revised social media policies in light of the attention given them by the NLRB. However, it is increasingly clear that employers should review all employment-related documents to determine whether any other policies might be deemed unlawful by the NLRB. There is little question the NLRB will scrutinize any and all employment-related rules or policies if given the chance, including handbooks and work rules certainly, but also form documents, disciplinary communications, and just about any other communication between an employer and its employees that establishes a standard of conduct. Look for handbook provisions and rules that are awkward, vague or overbroad, and anticipate the potential interpretations that may be conceived by an NLRB investigator. Problematic provisions should be reconsidered. If they are necessary, they should be revised to clearly define what is or is not prohibited, and to ensure they do not implicate protected conduct. Unfortunately, while including a disclaimer is not a bad idea, a simple clause declaring that no rule or provision is intended to nor will be enforced in a manner to limit Section 7 rights is not considered sufficient to save an “offending” provision.
“Conflicts of Interest” can be a term loosely applied to an employee’s mixed motives or divided loyalties, but in the employment law context, a conflict is a personal or financial interest that is opposed to the employer’s business interests. Employers need to protect against personal and financial conflicts since they can often affect the employee’s judgment or influence the execution of his or her duties on behalf of the employers. Some employers (banking, insurance, private foundations, for example) are particularly susceptible to damaging employee conflicts and, therefore, subject to significant conflict regulations. But all employers have an interest in avoiding employer conflicts of interest through a solid conflicts policy.
A good employer conflicts policy offers clear definitions of a conflict and processes for disclosure so that conflicts do not harm the employer or imperil a good employment relationship.
The policy should first define what would be a personal or financial conflict in the context of the employers’ actual markets or mission. The policy should address conflicts as related to inside and outside activities. It should acknowledge and define the problem of apparent conflicts. Common aspects of a good corporate conflicts policy address vendor relationships, gifts, second jobs, use of corporate information for personal gain, and inappropriate personal relationships among employees, or with vendors and customers. Examples of conflicts tailored to the employer’s actual situation help build in specificity.
Once an employer-specific and workable definition of a conflict of interest is established, the policy needs to address how the employee is to disclose an actual or potential conflict as well as the method the employer will use to determine how to address a described conflict and provide instruction to the employee. The policy needs to make clear the disciplinary consequences of failing to discern a personal or financial conflict or to make the appropriate disclosures and follow corporate instructions. There needs to be a process for third persons to report potential conflicts of other employees in good faith, which should include whistleblower protections.
Takeaway: The employer and its shareholders as well as the employees, company auditor, legal counsel, vendors, and customers all have a stake in an updated, company-specific, and effective conflicts of interest policy with clear definitions, disclosure processes, and consequences. Legal counsel can be of great assistance in drafting such a policy and interpreting and applying the policy in specific conflict situations.
Employment lawyers are hearing more inquiries about drafting and enforcing dress codes or professional appearance policies. This may be in response to casual days run amok. Or it could be the come-back of the “professional look” courtesy of Don Draper and his colleagues at Mad Men.
Whatever the reason, an employer can legally implement a dress code policy and enforce it. But there are certain touchstones that employer should keep in mind, including:
- Have a carefully written policy: Otherwise, enforcement can be subjective and inconsistent. This doesn’t necessarily mean a detailed description of what can or cannot be worn, but rather a policy rooted in business-based reasons. These can include public image, customer relations, productive workplace, and safety. And if there are specific items of clothing you want to prohibit (jeans, cut-offs, sandals), a “non-exclusive” list limits subjectivity.
- Beware of certain discrimination complications: An employee can, under limited circumstances, claim a religious reason for a type of dress or appearance. In some circumstances, “reasonably accommodation” of certain religiously mandated attire may be required unless it constitutes an “undue burden.” Tattoos and piercings rarely meet the standards for such protection. If an employee claims a religious reason for a dress code violation, consulting counsel on precedent and administrative guidance may be helpful. There can also be “disparate discriminatory impact” concerns in dress code enforcement, such as a disproportionate impact on one gender over the other. A policy should be as gender-neutral as possible.
- NLRA Concerns: The National Labor Relations Act (NLRA) prohibits the universal banning of union insignia, even in non-union workplaces. Labor lawyers can guide you through the narrow exceptions to this NLRA requirement if union insignia is a dress code issue in your workplace.
- Promulgation and manager training: Like any new policy, be sure that employees sign an acknowledgement (or have a clear record of distribution) and train managers on the “dos and don’ts” of the Policy – it’s one that may require more careful training than usual since there is a heightened possibility of a poorly trained manager making religious or gender-specific statements that could cause complications.
Takeaways: Employers do not need to tolerate poor employee appearance. Certain basic legal issues play an important part in drafting an effective dress code or professional appearance policy. Draft your Dress Code Policy with specifics that fit your organization’s needs and stay within legal boundaries. Employers can also keep enforcement legal by keeping it uniform (pun intended).
It’s Spring and employers’ hearts turn to thoughts of… employee handbook tune-ups. The end of the first quarter is often a good time to check your current employee handbook to be sure it’s current and comprehensive. Some areas to review are:
- Up-To-Date Policies: Are you current in such ever-changing policies such as social media, privacy, drug and alcohol testing, cell phone reimbursement, tuition reimbursement, and employee leave rights? Has the size of your company changed so as to affect the statutory applicability of certain leaves? For example, the FMLA and many other statutory leaves are based on the size of the employer’s workforce and their applicability may change as your workforce contracts or expands.
- Training: Are all supervisors trained to be able to fairly and uniformly implement the policies in your employee handbook including newly-hired or promoted supervisors? This is important not only for the ongoing enforcement of policies, but also helps to protect against discrimination and employer vicarious liability for employee actions.
- Fruits of Experience: Have recent workplace situations shown that certain policies are not workable or well-suited to your organization? This is the opportunity to revise outdated or unenforced policies – especially those that come from “off the shelf” sources.
- New Policies Incorporated: Have all new policies implemented since the last handbook revision been included in both your hard-copy employee handbook and any online versions of your employee handbook?
- Signatures: Do you have all employees’ signatures on handbook acknowledgement forms? A signed employee acknowledgment prevents an employee from being able to claim he or she had no knowledge of a policy.
Takeaway: Like anything that gets wear and tear, your employee handbook needs occasional maintenance. The suggestions above are just a few common tips for a handbook check-up. HR organizations have many more tips and your counsel may have a few ideas too.