Employment Law Advisor
Recent Legal Developments Require Employers To Update Their Employee HandbooksFebruary 1, 2015
A well-crafted and legally compliant employee handbook is important in communicating an employer’s policies and its expectations regarding employee conduct. Recent legal developments require changes in some employer policies. If your handbook has not been updated recently, it likely contains non-compliant policies and/or misinformation that may result in confusion and potential liability.
You should check your employee handbook to be sure it includes the following:
- Parental leave for both male and female employees. Effective April 7, 2015, the Massachusetts maternity leave law will extend to male employees. Eligible female and male employees are entitled to eight weeks of unpaid parental leave for the purpose of giving birth or for the placement of a child under 18 years of age, or under the age of 23 if the child is mentally or physically disabled, for adoption with the employee adopting or intending to adopt, or for the placement of a child with an employee pursuant to a court order. This leave will run concurrently with the federal Family and Medical Leave Act (“FMLA”) leave for employers who are subject to the FMLA, but will also cover employees who are not yet eligible for FMLA leave (and therefore a separate policy addressing parental leave should be included in employer handbooks whether or not the employer is subject to the FMLA). Our January 2015 Employment Law Alert explains this development in more detail.
- Paid sick leave for all employees. Under the new Massachusetts paid sick leave law, effective July 1, 2015, all Massachusetts employers must have a compliant sick leave policy in place. For employers with 11 or more employees, such sick leave must be paid; smaller employers need only provide unpaid leave. Such leave must accrue at a rate of no less than one hour for every 30 hours worked. Most employers who have existing paid sick leave or paid time off policies must revise their existing policies to meet all the terms and conditions of the new law, such as eligibility for all employees (including part-time and temporary), use in increments of one hour (or less in some circumstances), and carry-over of unused time to the next year. Our November 2014 Employment Law Alert explains this new law in more detail.
- Leave for victims of domestic violence. Since August 8, 2014, Massachusetts employers with 50 or more employees are required to permit employees to take up to 15 days of unpaid leave in a 12-month period for various reasons related to addressing abusive behavior or sexual assault, including if the employee or a family member is the victim of domestic violence, abusive behavior, or sexual assault. A policy setting forth the details of this entitlement should be included in all employer handbooks. Our October 2014 Employment Law Alert explains the new law in more detail.
- No ban on personal e-mail use. According to a recent decision by the National Labor Relations Board (“NLRB”) under the National Labor Relations Act (“NLRA,” which applies to all employers, whether they are unionized or not), employers may not impose a total ban on employee non-work related email communications to other employees during non-work times, unless justified by special circumstances. Even if not enforced, any ban on personal e-mail use should be removed from your handbook.
- Social media policy. As the use of social media by employees (both for business and personal reasons) increases, so do lawsuits against employers in this area. Make sure your handbook contains a social media policy that complies with the NLRB’s decisions, provides appropriate guidelines to employees, and protects your company’s property. Overly broad confidentiality and non-defamation provisions in social media policies and elsewhere can conflict with the requirements of the NLRA (which, again, applies to both unionized and non-unionized employers).
- FLSA safe harbor provision. Take advantage of the opportunity to include a safe harbor policy in your handbook to reduce liability under the federal Fair Labor Standards Act (“FLSA”) for improper deductions from wages. To obtain the benefit of such a policy, the policy must conform to the requirements of the FLSA, including but not limited to setting forth the specific instances in which exempt employees may have deductions taken from their wages, providing a manner in which employees may report any instance of improper deductions, and prohibiting retaliation against employees who make a good faith complaint under the policy.
- EEO statement with applicable protected categories. Make sure your Equal Employment Opportunity statement includes the correct protected categories for your jurisdiction, and doesn’t include any that don’t apply. For example, Massachusetts law protects “gender identity,” but not all states have similar protections.
- FMLA policy that includes both types of military leave: qualified exigency leave, and military caregiver leave. Although this change in the FMLA went into effect some time ago, many employers’ policies still do not include these important types of leave (which are available in addition to the more well-known reasons that FMLA may be taken). An employee may take up to 12 weeks per year of qualified exigency leave, or up to 26 weeks per year of military caregiver leave (or a combination of the two and leave for other reasons).
- In addition, here are some handbook mistakes to avoid:
- Disclaimers that might be characterized as “fine print.” Disclaimers confirming that the handbook is not a contract should be included not only in the introduction and at the end of the handbook, but integrated within each policy that might otherwise imply a right to a contractual benefit, such as a right to continued employment.
- Inflexible progressive discipline. Policies discussing means of discipline should not promise any particular order of events that will be followed before termination of employment, and eliminate any guarantee of “due process.” Include language that allows for employer flexibility and reserves the right of the employer to take action whether or not any particular disciplinary steps have occurred.
- A welcoming statement that contains promissory language. Handbooks sometimes include very well-intentioned language about employment at the company that can be used to claim contractual obligations (such as “we treat all employees fairly”). It is possible to draft friendly language that doesn’t conflict with disclaimers of contractual intent; don’t allow your handbooks to contain promises that dilute such disclaimers.
- Adopting a handbook found on the internet or cribbed from another employer. One size does not fit all, and using a handbook that hasn’t been reviewed for its fit with your company may result in the adoption of policies that do not apply, or which fails to include policies that should apply. It is not uncommon to find very small employers with FMLA policies cribbed from another employer, even though the employer is not subject to the FMLA.
- Failing to consider state law. Many states have their own particular protections for employees, and these requirements can vary dramatically from state to state. Make sure to include the laws which apply to the employees in each state in which you operate, and consider making clear that certain state-specific protections only apply to the employees in the relevant state.
For more information about these developments, or for help updating your employee handbook, please contact a member of the Employment Law Group.