Several policies in your employee handbook may be outdated and unlawful. With the turn of the year, it is an excellent opportunity to address these issues before it becomes a significant problem.
Employee handbooks are supposed to serve as an effective tool to communicate policies and procedures to your employees, while simultaneously establishing certain affirmative defenses that can protect your company during litigation. Unfortunately, many hospitality employers are finding that their handbooks are being closely scrutinized by plaintiffs’ attorneys and government agencies, such as the National Labor Relations Board and the Equal Employment Opportunity Commission. Instead of serving as a shield from liability, the handbook is becoming one of the chief means of establishing liability against you.
Here are eight provisions to address in your employee handbook to protect your company from liability.
Technology continues to improve exponentially and your workforce is part of that trend. They are likely spending time on Facebook, Twitter, blogs, and other social media outlets. It is, therefore, critical that you have a policy regarding what, if anything, employees may discuss on social media platforms regarding your company and its employees, managers, and customer.
Many social media policies, however, are overly broad and therefore violate Section 7 of the National Labor Relations Act (the “Act”). The Act gives employees the right to engage in concerted, protected activity, or in other words, to take action as a group to address their terms and conditions of employment. The National Labor Relations Board (the “Board”) has interpreted it to mean that a company cannot discipline or terminate an employee who engages in a discussion with other employees on social media about their terms or conditions of employment, even if such discussions would otherwise violate your policy. Moreover, the Board has ruled that many such policies are unlawful and need to be rescinded or rewritten. Accordingly, it is important to review your social media policy to make sure that it does not violate the Act.
2) Family and Medical Leave Act (FMLA)
A few years ago, the Department of Labor issued new regulations regarding the FMLA that extended FMLA protections to military caregivers and qualifying exigency leaves. Under the new regulations, military caregivers have the right to take up to 26 weeks of protected leave during a 12 month period. The new regulations also contain provisions about, among other things, continuing and periodic treatment, paid leave, notices, spouses working for the same employers, waivers of past claims, intermittent leave, light duty, bonuses, and contact with health providers.
3) At-Will Employment
It is important that you include an at-will employment provision in conspicuous locations throughout your handbook. Failure to do so could give rise to a claim that your handbook is a contractual obligation.
Recently, the Board has taken the position that certain at-will employment provisions violate the Act, particularly if the provision states that at-will employment cannot be changed without the sole and exclusive authority of a particular manager.
4) Health Insurance
Your handbook may be outdated based on the passage of the Affordable Care Act. For example, the Affordable Care Act requires that health insurance be available for dependents up to the age of 26. In addition, eligibility periods cannot be longer than 90 days from the start of employment. If you have more than 50 full-time employees or full-time equivalents, there are also additional requirements regarding your coverage that you should address.
5) Anti-Harassment, Anti-Retaliation
A well-drafted anti-harassment and anti-retaliation policy (along with an equal employment opportunity policy) is critical to providing your company with an affirmative defense against charges of discrimination alleging harassment. The policy should provide a list of protected categories (including the newest ones, such as Genetic and Carrier Status), a complaint procedure that includes multiple avenues to whom an employee can complain, and a clear prohibition on retaliation.
6) Reasonable Accommodation
The Americans with Disabilities Act (“ADA”) was amended a couple of years ago and the amendments greatly expand the definition of disability. Previously, employers did not have to worry quite as much about this Act because it was relatively easy to argue that the plaintiff was not disabled. But under the amended act, this is no longer the case. Accordingly, employers will have to spend more time addressing requests for reasonable accommodation.
A request for reasonable accommodation can take many forms. For example, it can be a simple request to take a 5 minute break every few hours, to a more burdensome request of asking for a leave of absence. Your handbook should note that your company complies with the ADA and it should explain the procedures for requesting accommodation.
7) Confidential Information
The Board has taken an aggressive approach in invalidating policies that protect confidential information if they are overly broad. A company may not require that employees keep information confidential if it is relevant to their concerted, protected activity. For example, the Board has taken the position that a policy is unlawful if it prohibits employees from discussing their wages. Likewise, depending on the circumstance, a policy prohibiting employees from discussing the contents of an internal investigation may be unlawful.
8) FLSA Safe Harbor
The restaurant industry continues to be plagued by wage and hour lawsuits. One way to mitigate against these lawsuits is to include a provision in your handbook stating that employees should let the company know if their paycheck is incorrect and/or if an improper deduction was taken. Then, the company will investigate such claims and promptly reimburse the employee for any errors.
Evan M. Rosen, Esq. is a Partner in Epstein Becker & Green, P.C.’s Atlanta office. He specializes in labor and employment law, with a focus on the hospitality industry. He can be reached at (404) 869-5325 or at firstname.lastname@example.org.