Employee Handbook Do's & Dont's
Employers must comply with a litany of federal, state and local laws which govern virtually every aspect of the employer-employee relationship. Most employers wish to communicate the steps they will take to comply with the law in an employee handbook. This crucial document is responsible for distilling a variety of complex and constantly-changing legal topics into one easy-to-read guidebook for employees, and managers. We introduce a variety of concepts which counsel preparing these critical documents should be aware of, and how handbooks can be used as both a sword and a shield later in litigation. In doing so, we highlight a number of hot topics in the employment law space, including teleworking, medical and adult-use cannabis, and paid sick leave laws.
Lisa: Through this presentation, we're going to cover the significance and value of employee handbooks. As I said, your must-have policies, optional policies, policies that are risky, other drafting considerations and pitfalls. And throughout, we're going to talk about some hot topics and employment law as well, and hopefully, at the end, you'll walk away with an understanding of the core elements that your handbook should have, some policies that you may want to consider, and then of course, policies to avoid.
It's very overwhelming to put a handbook together, especially when you maybe don't have an understood of the federal state and local laws behind these policies, or which policies are really essential for your particular type of workforce. And we hope that this presentation can give you some best practices and thoughts about how to structure your handbook.
Some hot topics that we're going to cover to that include paid sick leave and COVID-19 requirements. I'm sure anybody who's listening to this is probably sick of hearing about COVID-19 requirements at this point. Obviously, we've all been living through the past year and a half just turning all of our regular practices and procedures on their face and just dealing with a whole new work reality. And now the "New Normal," post-COVID, but there's still a lot of considerations to take into account as policies and regulations continue to be updated around the country from a federal, state, and a local level.
We're, also, on a related note, going to touch on remote work and reasonable accommodations, which have been coming up a lot. Obviously, now, there's a different work structure for a lot of individuals, especially in light of COVID. And we're going to touch on medical and adult-use cannabis legalization. More and more states are starting to legalize marijuana, not only for medicinal, but for recreational use. And what does that mean for your workforce and your drug-free workplace policies?
Okay. So why have a handbook? What is the significance and value of having a handbook? Well, there's a lot of reasons to have a handbook. It welcomes your employees. It's something to go over during their training and onboarding to show, "Hey, you know, these are our policies, these are our expectations. These are our standards that you can expect when you work here."
It should include, or can include, a statement about your values and your culture. Importantly, it's a centralized place for information. So when an employee has a question about their vacation, a question about call-out procedures, a question about leaves and benefits, the handbook should be one of their first resources that they have available as a go-to for any questions or concerns that they have regarding their work environment and regarding your policies.
Of course, the handbook is also going to include prohibited conduct or your discipline policies about what can happen if one of your practices or if one of your guidelines is violated. And equally important, handbooks are a tool to ensure and demonstrate compliance with federal, state, and local laws.
So, it's becoming more and more common that our employment laws put this burden on employers, that employers have to demonstrate not only that they're following the law, but that they're telling employees what the law is, what the standards are, and what they're entitled to. And so, instead of having all these piecemeal policies just floating around, the handbook is that centralized place where you're going to keep that really important data that you're going to update as the law becomes updated. And having the handbook and having it be updated shows to a court, or to a jury, or to an agency, if there's a claim or a complaint, that you're aware of the law, that you understand how important it is, that you intend to comply with the law.
And that's really critical if an issue does come up, because a lot of times, for example, if there's some sort of her harassment claim or something like that, one of the primary questions is, "Okay, what does your complaint reporting procedure look like?" Right? And "Well, where is that going to be housed?" It's going to be housed in your employee handbook. And what if you don't have one? Well, if you don't have one, what standards are your managers following, your HR?
So it's not only a tool for employees to utilize so that they know what your policies are, but it's a way to demonstrate that you intend to comply with all relevant laws that relate to employment policies.
So some key considerations or do's for your employee handbook: You do want to consider all jurisdictions where your employees are working and not just company headquarters. I see this come up a lot with clients who have, perhaps, one primary work location and then maybe smaller branches in other states or other cities, or they started off, let's say, on the east coast, and now they've expanded to the west coast. And they started off, perhaps, with a great set of policies for their original location, and then they got busy and they got swept up in other things and kind of forgot along the way to update their policies for their other locations.
It's really, really critical that your policies reflect the laws of where your employees are working. It's not based on where they live. It's based on where the work is performed, in most cases. So, if your headquarters is located in New York City and you have employees commuting in from New Jersey. You need to make sure you have New York City laws reflected in your handbook, right? And even if your primary location is in Miami, if you then have a few employees working in Boston or working in Chicago, well, what policies apply to them?
Now, when we get into remote employees, it's obviously a different situation, and it depends on where those employees are located. But it's really important to just remember that, as these laws evolve, more and more states and cities are having their own separate laws, different from the federal law. They're usually more employee-friendly. In other words, there's usually more expectations on the employer, and it's important that your policies reflect those laws, again, to show that you understand, that you're in compliance and that you're doing what's expected of you.
It's really, really easy for a disgruntled current or former employee or someone to make a complaint against an employer for any reason under the sun, and to use the absence of a policy to try to claim that the employer isn't following the law, right? So we do want to anticipate the ultimate use of these policies and litigation for the same reason, right? So our policies, we want them to be up-to-date. We want them to be compliant with the law. We want them to reflect your values.
And one of the reasons, other than just needing to follow the law, is that these handbooks are going to be one of the primary and first exhibits in any employment litigation case that comes up. Again, if there's, let's say, a discrimination lawsuit. Okay. What does your equal employment policy look like? What does your anti-discrimination policy look like? And if you don't have one, not only is that a violation of itself in a lot of cases, but what does that say about your values and your culture, right?
And we want to make sure that we're paying close attention to organizational and section titles and the policies so that, again, they reflect what's required by law, they reflect your intention, and that the handbook makes sense and is easy to follow. Right? We want ... This handbook is going to be reviewed by people, usually, with many different levels of education, many different backgrounds. We want it to be user-friendly so that anybody can pick it up and understand what the standards and obligations are.
Some things we don't want to do you with employee handbooks: We want to avoid creating contractual obligations. This is a big one. Handbooks are guidelines. They are not contracts for employees. And in fact, you want to, and we'll talk about this, have an at-will statement in your handbook. And we'll talk about what that means. But handbooks are not contracts for employment. And you need to be really clear about that. If you have concerns about confidentiality, invention assignments, trade secrets, things of that nature, you want to have a separate, legally-binding contract that you have with the employees that's separate from the handbook.
Same with arbitration. Handbooks are not contracts, and they cannot be enforced like contracts under the law. And for the most part, you don't want them to be, right? Because, usually, with employees, unless they are getting a contract for a specific term, you need to have the option to terminate the employee at any time. And the employee should not have an expectation of continued employment.
As I said earlier, we also want to make sure that the handbooks are easy to follow. So you want to avoid legalese. It's very easy with all of the laws and regulations to get sort of tripped up and maybe copy and paste things right from the statute into a handbook. And in some cases, there might be specific language that you need to have in a policy, but ultimately you want the policy to be easy to understand, and to be able to be interpreted by anyone from any background, with any level of education.
Okay. Let's summarize some must-have policies that should be in your employee handbook. The at-will policy, which we're going to talk about in a moment, an equal employment opportunity, anti-discrimination, and anti-harassment policy, which should include a complaint reporting component for internal complaint reporting procedures. And by the way, states like California, and Illinois, and some other areas even have obligations for employers to notify employees about external complaint reporting and what external resources are available.
You want to make sure that you're covering disability and pregnancy accommodations, your payroll practices, and, in particular, overtime, federal, state, and/or local leave laws, workplace violence and prohibited conduct, technology, devices, and privacy policies, and a drug-free workplace and drug testing policy. So, certainly there are many other policies that you can have in a handbook, but that list includes a lot of the critical ones that we see as particularly important to your regular operations in the workplace.
Erik: Great. So, as Lisa mentioned, one of the most important policies that you want to include at the handbook, and truthfully, when I'm drafting a handbook, I usually put it on page one, right inside the cover, potentially even before the table of contents is a statement that all employees are at-will employees and that nothing in the handbook will create a contract or contractual rights for the employee.
There are cases where employees have tried to argue that the employee handbook has established a term of employment, and then, after a termination, the employee seeks compensation. So, the key to that is to clearly upfront acknowledge that the employee remains at-will, despite anything in the handbook. And that also, the employer has the right to modify or delete anything in the handbook at any time, without any notice. And that's important, not just from a legal perspective to keep that right, but from a practical perspective of the fact that, as Lisa alluded to, these laws change constantly at both a federal, state, and local level.
A diligent employer might be making minor tweaks to their handbook on a very regular basis, and it would be impractical to distribute a new handbook each and every time when a amendment is made. So, reserving the right for the employer to modify the handbook without notice is an important part of the handbook at the outset.
And, usually, right after the at-will acknowledgement, the first real policy, so to speak, of the handbook almost always is an equal-employment opportunity policy. Certain laws like Title VII, the ADA, the ADEA, as well as their state and local counterparts, they require all employers to be equal-opportunity employers in that respect that employment actions should not be taken against any employee because of their protected status, as well as, employees should be free of any kind of harassment or discrimination in the workplace because of their protected status.
Typically, an EEO policy will list out many of the protected statuses that it will apply to. That list can get very long, especially dealing with some states like New York, Illinois, and California. But with that being said, it is a good strategy as an attorney drafting these handbooks to include as many protected statuses as possible. And then from a practical perspective, add in a catch-all of saying, "Any other protected statuses under the applicable law."
With regards to the EEO in some states, again like New York, Illinois, California, they are ... Employers are required to include a complaint procedure. And each state is a little bit different about their requirements. Again, for example, New York requires a form actually be available to employees. And it's important that attorneys drafting these agreements understand those procedures, understand both legally how they're supposed to work, but also practically how they're supposed to work, including who the form will be submitted to, how it will be submitted, and to educate employees through the handbook exactly what they can do in the incident that they have a complaint to report.
And again, one of the most crucial aspects of this is that it can provide a defense in certain circumstances, under certain laws, that an employee did not make a complaint before raising a lawsuit.
So, again, the importance of the complaint process really is, from a legal perspective, to have the employer understand what the allegations are and to enable the employer to intervene and potentially correct the situation before there is a lawsuit or charge of discrimination to the EEOC. And one of the ways that the handbook can help employers in this mission, again, is to provide a clear roadmap for employees to follow in the event that they have something to complain about.
And then, on the flip side, again, if a issue does pop up, that the employer can point to the fact that the employee never raised this, and they had no way of intervening or no way of correcting the action, and that can provide a defense in certain circumstances under certain laws, as well as from a practical perspective establishing in mediation that, "You never complained," and that the employer is willing to intervene and provide the employee with the relief he or she might be [inaudible 00:16:33].
Another important policy, usually at the very outset of the handbook, is a request for accommodation policy. Typically, what we are talking about with accommodations are disability accommodations, which are usually in compliance with the AmErikan Disabilities Act, as well as those amendments and the state and local laws. There's also medical cannabis laws that come into a play that we're going to discuss a little later on. Certain states, as well, require accommodations be made for employees who need to take lactation break. And here, again, is a very important point that employers and their council really need to understand the state and local laws in this respect, because they can be very specific, including down to the exact number of minutes that employees are entitled to. And generally, also, people have a right in the workplace to request religious accommodations and those can be wide-ranging, ranging from days off to observe certain religious holidays, days of worship, as well as accommodations from workplace attire.
So, when it comes to accommodations, much like the complaint process, employers are best-served by establishing a request process in writing, again, because one of the keys here that you're trying to avoid is an employee saying, "You didn't provide me this accommodation that I needed, and that was discriminatory." And the employer is in a better position to say, "We established a process for you to request this accommodation. You didn't use the process. We are under no obligation to provide you this accommodation we did not know you needed," and that's just better served in litigation, and other complaint processes. You really want to make sure that it's clearly labeled, and also provides the employees a clear roadmap of what to follow.
Also important, payroll and compensation. Certain local laws do require disclosure of employee pay information. You also want to set timekeeping requirements, and this is going to be especially important for remote workers that we're going to talk about their complex issues in a little bit. But you want to make sure that employees understand, really, how to clock in and clock out. It sounds like a easy thing to explain, but this is ... Remember, this is going to be their guide during the course of their employment.
And in the event that there is invalid overtime requests, for example, the employee handbook is actually going to be the guide that both the employer and the employee are referring to regarding this. So, it's important to explain the payroll practices directly to the employees, so that way there's no ambiguity regarding how payroll and compensations, all that stuff, is going to work, including time-reporting.
Paycheck deductions. Again, there are certain requirements that employers need to disclose. And typically, a handbook will state that the employer will deduct from the employee's payroll mandatory and voluntary payroll deductions, including any employee benefits should be disclosed to the employee, which are deducted from pay as well as tax and withholdings. You know, even though something might be legally required for the employer, it's best served to disclose to the employees at the outset what is exactly going to be taken out of their paycheck.
And one of the biggest things we're really trying to avoid by enacting a stringent payroll on top policy is really any kind of risks under the Fair Labor Standards Act at the federal level, but then also any of the state wage theft claims. Those claims can be very risky for employers. They usually are brought on a class basis. So this is an area that employers are best served by really looking closely at and making sure, again, you're following not just the federal laws, but also the state and the local laws that govern this aspect.
So, along the same lines of the FLSA, one of the things that's the most important to note is that employees should be told at the outset of their employment, not in the employee handbook itself, but what type of employee they are from an exempt or non-exempt level with regards to whether they'll be paid by a salary or not.
Again, the important thing to know is that, over time, exemptions are determined by the type of work that an employee performs, and the amount they are paid. The salary threshold itself, which in 2019, was increased to $35,568. That salary threshold alone does not entitle the employer to take the exemption. It's actually determined by the type of work it's doing as well. And they have to meet one of the duties tests set out by the DOL.
And it's important to note in the handbook ... And this is where it applies to the handbook, is you want to inform employees, what is the difference between an exempt and a non-exempt employee? Telling employees right off the cusp that, if you're designated as an exempt employee, you won't be eligible for overtime. Or, even the opposite, of telling employees that if they are not exempt and they're paid by the hour, it's especially important to track your hours accurately. So, from their perspective, they are paid fairly for any work that they do. And also from the employer's perspective of avoiding any unforeseen liabilities. The duties test was at one point going to be changed, but the duties test remains intact as it existed prior to the start of the year.
Leave policies, also very, very important to check federal, state, and local leave policies. And this applies to both paid and unpaid. Many local policies, as well as state policies, will be impacted by the actual size of the workforce, as well as the actual location where the employee is working. So, this is a part of the employee handbook where it's pretty common for employers and their attorneys to create state addenda, or even local addenda to capture all the nuances of the law.
For example, the New York state sick leave law is very specific and provides certain requirements that are different, even from other policies that provide the same amount of time, but there's certain restrictions or allowances of uses for sick time. So, it's important to cover all of those laws in your leave policies, again, both paid and unpaid and not just relying on the federal templates that a lot of form handbooks will provide.
And, obviously, as Lisa mentioned at the outset, the COVID-19 pandemic has really changed a lot of this. Some of those laws have gone out of effect, others are still in effect, but with some changes. So, to one perspective, employers might not want to actually include the COVID-specific laws within their handbook, but acknowledging in the handbook that an employee always has the right to take leave in accordance with state and local laws as they operate in the time, it saves the employer some headaches down the road. And the best thing that employers can do is just communicate any changes as these laws come out, seeing what happens in the future.
So, the pre-COVID laws that we're really talking about at the federal level in regards to leave, the two big ones are FMLA, The Family and Medical Leave Act, as well as the AmErikans with Disabilities Act, the ADA. Obviously, state and local laws impact all of these and provide different benefits, but at the federal level, those are the two laws that we're most commonly talking about.
The FMLA, it only applies to employers with 50 or more employees within a 75-mile radius. And that number is calculated during 20 plus calendar work weeks in the current or proceeding calendar year. From a practical perspective, if you are on the cusp of that 50 plus employees, and you're drafting a handbook or counseling a client, it's best to assume that the FMLA will apply. There's case law interpreting that counting requirement ... And it's confusing to say the least. So the FMLA is a policy or a law that allows employees to have unpaid leave. So, from the employer's perspective, what it really is providing is that, for certain medical conditions, the employee has the right to job protection.
And the employee is entitled to that job protection within a 12-month period of 12 weeks, right? Within a 12-month period. And employers can actually set that 12 month period themselves. And that's something that their council drafting their handbook will want to do. Again, it can be a calendar year. It can be from the moment leave is first taken, or it can be any other arbitrary period that the employer might want to set.
And the handbook should list the reasons why somebody would take FMLA leave, and what it's reserved for is employees suffering from a serious health condition, as well as to care for a child or spouse suffering from a severe or serious health condition.
It can also cover birth of a new child, bonding, or placing a child for adoption or foster their care. And again, the handbook should clearly state all of this. And that language is clearly available from the Department of Labor as well.
Importantly, FMLA and PTO. FMLA, as I mentioned, is unpaid, but if employers have a PTO, meaning paid time off policy, for, really, vacation days, the employer can, in certain circumstances, checking state and local laws, typically require employees to take PTO days on the same time as FMLA. So, in a drafting perspective, you would say that the FMLA and PTO request would run concurrently with one another.
Lisa: Thanks, Erik. As Erik mentioned earlier, another policy and law that's really important to consider for your handbook is the ADA or the AmErikans with Disabilities Act. And this requires employers to provide reasonable accommodations to qualified individuals with a disability, which allow the employee to perform their primary job duties. And that's assuming that the accommodation does not cause an undo hardship.
So, what does that really mean? That means that you need to have a policy which tells employees that if they have some sort of disability and they think it's impacting their work or their performance or their primary job duties in any way, they need to contact an appointed person. It's usually someone in human resources, whoever you've identified to be privy to this type of confidential information and encourage them to say, "Hey, I have a condition that's impacting my work, and I need some help."
And that help could be in the form of, for example, a bigger monitor, if it's a visual problem. It could be in the form of a different type of office chair if they have a lumbar issue. It could be in the form of needing a 15-minute break every three hours, or a stool to sit on instead of standing. There's many, many, many accommodations for many different types of disabilities. And the term disability is defined fairly broadly under the ADA. So, many different types of physical and mental health conditions would qualify.
And the important thing is that the policy indicates that when the employee comes to you, which they should do, that you're going to engage in what's all the interactive process and talk to the employee about what their accommodation is, what their disability is, what sort of accommodation they're looking for, and go through this process. And typically, employers are expected to provide an accommodation unless it causes an undue hardship.
What do we mean by undue hardship? Undue hardship is something that is significantly burdensome, whether it's financially, organizationally, something that is obviously not easy to accommodate, but it can't just be sort of annoying, or, "Oh, I have to order this new piece of desktop equipment online," or, "Oh, I have to make sure to move someone's desk to an area near the elevator," or whatever it may be. You have to really think about what kind of hardship it's causing, which brings us to a type of accommodation that I know Erik and I see very often, which are leaves.
A leave of absence is a type of accommodation. And when it comes to your drafting your policies for your handbook, you don't specifically have to state that leave is an accommodation, but it's a good idea to just say very broadly that you, as the employer, will consider all reasonable accommodation requests and provide accommodations that do not create an undue hardship.
So just be aware that there's many different types of requests. The employee does not have to use any magic words, or even submit a request in writing. It's more just about the need for assistance that in a way that impacts their job, and that the employer has an obligation to provide that assistance.
So I mentioned earlier that the term disability is defined fairly broadly under the ADA. And what I mean by that is the disability is something that is a physical or mental impairment that substantially limits one or more major life activities. This includes seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for yourself. You know, the list goes on and on. You do not have to put the definition of disability in the handbook, but it's important when crafting this policy and implementing this policy that you have an understanding that it's pretty broad.
Usually, disabilities will qualify for the ADA ... It's kind of hard to think of things that don't qualify as an ADA disability, really depends on the type of care, the way it impacts the employee's lifestyle, whether they're being treated for the disability, there's a number of factors. And it's important to just be open and understanding, and gather the important information to determine if this is an ADA-qualified disability under the law. It's also important to note that pregnancy itself is not a disability, but pregnancy-related conditions may be a disability, right?
So just the fact that someone is pregnant does not mean that they are disabled, but if somebody has any sort of complication or disability related to the pregnancy where the individual either needs some sort of bedrest or needs to sit down or have breaks, or any other many types of accommodations that are possible for individuals who are pregnant, it's important to consider those requests in light of the ADA as well. And your policies should reflect, specifically, that you will consider and make small accommodations for pregnant individuals in addition to other types of disabilities.
So another area that we have touched on that's really critical for employer handbooks are paid sick leave policies. We're just going to keep reemphasizing how critical these policies are just because, not only are they fluctuating and changing and developing fairly rapidly, but we see a lot of new and evolving litigation come out of these policies is when they're not applied correctly and when employees and employers don't understand leave entitlements under the law.
So, New York, Massachusetts, Maryland, New Jersey, Illinois, California, and many other areas have their own state and/or local paid sick leave laws. And it's really important to understand the nuances of these laws in terms of not only how much time paid leave the employees get in a 12 month period, whether it's 40 hours or some other time, but how the time is awarded. Is it front loaded? Is it accrued based on hours worked? How is it tracked? Is it part of a broader paid time off policy? In other words, do you have one bank of leave for vacation, sick, and personal time, or do you separate out vacation and sick time? What happens at the end of the year? Does the leave have to carry over to the next benefit year? Does it get paid out? Is it a use it or lose it policy?
What happens at termination? That's another big one. I've seen a lot of complications come up when employees leave an employer for various reasons, and it's not clear what happens to this leave of sick time or a PTO that wasn't used. Is the employee entitled to it? Well, the laws in place and the case law should shape these policies. And it's really important to be aware of where your employees are working to know which laws apply to them and to make these policies very clear. Equally important is just staying on top of the laws and updating them.
For example, as we hinted that earlier, due to COVID, a number of states and jurisdictions updated their laws to affirmatively say, "If there's a pandemic, you have this type of leave." And whether that's incorporated into the existing, whether that's additional sick leave, whether it's leave to go get a vaccine. There are new and evolving laws that are in place. Some of them are only in place for a finite period of time. For example, through September 2021 or the end of the year, but some are just built into the amended statute, right? And it's to be there because if there is another future pandemic, the government says, "Well, this is what we did in this case with COVID-19, this is what we expect to do in the future." So staying on top of these laws is really critical to understanding your obligations and to being very clear with employees, what type of benefits they have.
And the handbook is a really great tool for that, because guess what? If your HR manager is out one day or you can't get in touch with a certain person who normally processes these leaves, your regular mid-level managers and your employees should be able to reference your employee handbook and interpret what it says and understand what policies apply to them.
So, key items to consider for sick leave policy include permissible reasons for leave under the law. So these leaves, remember, it's not just an employee's own illness, right? There's the illness of an employee's family member. There's regular treatment care, periodic checkups. A lot of policies also even allow leave for childcare care-related events. So some sort of school incident, the parent has to report to, childcare is closed, now there's state of emergency leave. So it's not just an employee's own illness.
Another area that we see covered by certain sick leave laws is domestic violence incidents. So, if somebody needs to obtain some sort of relief for a domestic violence situation, sometimes that's even covered under these policies.
We need to know when the employees become eligible for the leave. So, in a lot of cases, the way the law is structured, when you have a new hire, they start earning or accruing their sick leave on their first day of work, but you don't have to allow them to use it until, say, they've reached 90 days of employment. So, it's important to understand how the leave laws are structured and incorporate those into your policy.
In the example I just gave, if you had a new hire and you said, "Welcome to the job. Guess what? In six months, we'll give you two weeks of leave," that sounds great, but that's not compliant with the law, right? And if that's what your policy says, that would indicate to a court, to a jury, to the DOL or another agency that you do not understand with and are not complying with the law, when perhaps your intention was to give great benefits to your employees and to be compliant. So, it's really important to consider these nuances.
We want to consider the overall leave entitlement for employees, any mandatory carryover of sick leave from one year to the other. For example, in New Jersey, employees are permitted 40 hours of paid sick leave per benefit year, and they can carry over up to 40 accrued and unused hours to the next calendar year. So, in New Jersey and other states, you can't have a policy that says, "Use it or lose it," right? If they have certain amount available to them, then they're allowed to carry it over.
In other states like California, if you front load the sick leave to employees in the state of California, I believe it's 24 hours, and you don't make them accrue it you don't have to have a carryover component into your policy. So it's very nuanced and area-specific. Some states have laws that have certain requirements for pay stubs, or that have certain requirements for how the PTO or ... I'm sorry, the sick time is treated at termination.
We also want to, of course, make sure that the sick leave is consistent with and connected to your call-out and attendance policies. So, this area is really critical. And I know I've seen a lot of employers try to just sort of have a one-size-fits-all policy, because it seems like the easiest thing to do, but, in actuality, when you have employees working in areas where the state laws are so finicky and nuanced, you may need to have supplements or addenda that are location-specific when it comes to sick leave laws.
Another policy that we recommend having in every handbook is a discipline and workplace violence policy. This is recommended by OSHA because it provides examples of conduct that can result in disciplinary action, up to and including termination, such as verbal and physical threats, or any sort of misconduct, insubordination, attendance that's not pre-approved, bringing any sort of weapon to the workplace, of course, falsifying any sort of medical records. What you want to make sure that's clear is that you're providing a non-exhaustive list of examples of conduct that can result in disciplinary action.
And you can talk about progressive discipline. You can give examples of progressive discipline, such as, first, we generally do a verbal warning followed by a written warning, et cetera. And that's all well and good, but you want to make sure that you ultimately say that the decision of how to implement discipline and what discipline you implement is in the discretion of the employer and can be different based on each circumstances that arises.
So you don't want to be tied to a mandatory progressive discipline process or a mandatory grievance process unless it's part of a collective bargaining agreement, right? Because that places a large and unnecessary burden on the employer, and usually is actually more difficult to follow than, of course, when you have a broader, more discretionary policy. We obviously want to make sure that our policies are followed consistently and applied consistently in similar situations.
So, you might have, for example, a policy which generally provides that, let's say, you have employees in a manufacturing plant. If they're absent or they're ... Not absent. If they're late to work X amount of times in a year, that will result in a certain type of verbal, written warning be because you know those instances are going to occur frequently, but you still want to make sure your policy provides flexibility so that you can make any decisions that are necessary for your employees based on the facts and circumstances at hand.
You also want to make sure that there's a complete reporting procedure if there is any suspected incidents of violence or threats in the workplace, whether that's related to a weapon or some other issue. So again, you want your policies to be easy to understand, and you want employees to understand that they should feel comfortable reporting any complaints or concerns regarding conduct of other employees or individuals in the workplace.
Another area that has obviously developed over time, that's critical to address in terms of employment policies is the internet and technology-use policy. Comes under a variety of different names that you might see, but generally, you should have policies concerning your computers, internet, email and company-owned devices. And the most important aspect of that policy is you need to notify your employees that you have the right to monitor employee-use of your devices and servers at any time, and employees have no expectation of privacy when it comes to their use of these devices and servers, whether that's in your office, whether that's a laptop that they took home with them for the weekend, whether that's at a remote work site. If it's company property, including company provided email, it belongs to the company and you can monitor at any time, but you need to provide notice of that to employees so that you can avoid privacy issues under various federal, state, and local privacy laws.
It's also really critical when you talk about your device and use policies that you're preserving all employee data and communication, not only in accordance with laws that require certain preservation of records, but also just so you have the data available to you should an issue with an employee come up.
So let's say an employee is terminated for poor performance on January 1st, and a few months down the line, you receive a lovely letter in the mail from an attorney saying that that employee is now bringing a complaint or a lawsuit against your company. At that point, you don't want to be saying to yourself, "Oh no, I just deleted all of the information and all of the electronic files I had for that individual." We never want to be in that situation. So you want to make sure that your policies are to preserve all data, email communication, even after the employee leaves your employment. Okay.
So I do want to touch on the drug-free workplace and drug testing policies that we see a lot, and that are important to employee handbooks. You should have a policy that says there's zero tolerance for drugs and alcohol in the workplace. You can talk about pre-hire versus post-hire testing policies, including random testing, reasonable suspicion, or incident-based testing. You want to be clear that a positive test result or refusal to submit to a test may result in disciplinary action. And if you provide for some sort of addiction treatment process, what protocol you use for that.
So the take homes are no employer should be tolerating the use of illicit drugs or alcohol in the workplace. And this is what our process is if we suspect that there is drug use, or we're going to test for drug use, this is what the employee should anticipate will happen when these issues arise. And it's important for employees to be on notice about that process, so that in the event it comes up and they don't report to the testing center, they bring some sort of paraphernalia on site or any other number of issues happens and you need to take disciplinary action, you can point to your policy and say, "We told you you were on notice. This is how we treat these issues. And now we're following our protocol and handling things in accordance with our policies."
A really big area that's developing, as we mentioned earlier, is drug testing and cannabis in the workplace. So, this is a very evolving area of the law, but the overall gist of the situation is ... And your policies should say this very clearly, employers do not have to permit employees to use or be under the influence of drugs, including marijuana, at any time that they're working. So just because marijuana is legalized for medicinal or recreational use in your state does not mean that an employee can come light up in the workplace, right?
What it means is if there is a medicinal marijuana use in the state where the employee works, then employers may have to accommodate offsite cannabis use as a reasonable accommodation for a bonafide disability. So, just like any other disability, if an employee, whether through a drug testing process or some other process says, "I need an accommodation from this policy or position that says, 'I can't test positive for marijuana because I use it offsite.' I was prescribed by this doctor. Here's my prescription." You have to consider that and go through your interactive process to determine what a reasonable accommodation may be.
In a lot of areas, it's now illegal to terminate an employee solely because of a positive test for marijuana. The key to the whole formula is, is there impairment in the workplace that impacts that employee's ability to safely do their job or be safe around others? So, so we want to always focus on impairment and that's what our policies should reflect.
Some jurisdictions have completely prohibited the practice of pre-employment drug testing for cannabis, like New York City. So you want to be mindful of your onboarding policies in that regard. And states, as I said, have even gone as far as saying, "Employees cannot be terminated for a lawful use and possession of marijuana." So just be mindful that your policies don't indicate that a failed drug test will always result in termination or discipline, right? Each case should be considered based on the facts at hand and whether or not there was actually impairment coupled with a positive drug test.
When you're reviewing and considering these policies, you want to also think about your reasonable suspicion practices. And that means you reasonably suspect that somebody is under the influence of marijuana or other drugs in the workplace. You want to make sure that your supervisors who observe the behavior are properly documenting the behavior, but also maintaining confidentiality to the extent possible for what they're seeing. So you want to consider having in your policy a requirement that managers who observe any impairment immediately document what they observe and report those incidents to human resources.
So what does this mean for a handbook? It means that your handbook should be updated regularly to reflect current practices and laws. You want to make sure that state law differences are incorporated into your handbook, possibly in a supplement or addendum. You want to make sure that the handbook outlines any practice prohibited by state or local law which amounts to discrimination by itself, or at least to make litigation more difficult. So your handbooks need to be current, right? If something directly conflicts with the current law that's in your handbook, chances are it's going to reflect that you're not in compliance with current standards.
And make sure not to rely on a handbook that's simply forwarded to you from someone else. You know, one of your friends in the industry, because is you don't know where that handbook is coming from, or the last time it was updated to the current standards and current law.
So, we also want to note that there's a number of optional policies for your employee handbooks, including telecommuting policies, social media, workplace romance, dress code, and confidentiality. We're just going to briefly touch on those because we see need them as optional, but we come across them fairly frequently when we're reviewing and preparing handbooks for our clients.
Telecommuting should set forth your expectations regarding business hours and availability of employees and their responsibilities when they're working remotely. One of the keys to these policies is that employees are expected to still be working, obviously, even if they're working from home and that tele commuting is a privilege and not a right. So, it's at the discretion of employer and it's not guaranteed unless you have a position where you're specifically hiring someone to work remotely.
Even the EEOC has commented on teleworking in the post-COVID work environment. And the EEOC has said that employees do not have an automatic entitlement to continued telework once they are called back to work, after being placed on remote work due to COVID. If the employer altered an employee's essential job functions during the period of telework due to COVID, the employer has not permanently changed the position. So, just because you told everyone to go work from home for the last year doesn't mean that you have to keep those employees working from home. But, as we've been talking about, whether you're returning someone to work for the first time now, or you're considering returning someone to work in the future, if an employee raises an accommodation issue, especially if they've been working from home and doing their job just fine from home, you need to make sure you're very carefully following your interactive process before making any determinations about accommodations related to remote work.
Also, be really clear with your remote work policies about prohibiting off-the-clock work. We want to make sure ... Erik talked about your payroll and overtime policies earlier, but employees, obviously, need to be compensated for all hours worked, and we want to make sure that employees are not working you off-the-clock by always being on call, or doing emails, or placing calls outside of their work hours.
The other big area is expense reimbursement for home office supplies. So if you're in a state like California, which has pretty strict laws regarding providing employees with office equipment for when the position is intended to work remotely, you want to make sure that those laws are reflected in your policies. So make sure that you're really clear about the timeframe that employers are working remotely and what equipment will be provided.
Erik: All right. So, with all of that, what can employers do to ensure that they have a productive workforce that is potentially remote? Again, communication's key, and that communication really is through the employee handbook. You also want to make sure that you are training managers to identify certain risks, respond to requests, understanding that the incident of an hourly, non-exempt employee doing off-the-books work just to help somebody out, thinking that they're a team player, understanding that that is a risk that could in turn be an FLSA violation to the company itself. Of course, they didn't know about it in that hypothetical, right? But if it's repeated conduct, ensuring that managers know to step in and, again, informing employees to inform their managers if there is potentially an issue.
And again, be practical when considering accommodation requests. Understand that employees will see that this remote period did work, and understand that the accommodation request that some people might be making might be reasonable in the circumstances, even if that wasn't the employer's view a while ago.
Somewhat related to remote working, social media. The workplace has just expanded right now. It's really everywhere. And nowhere is it more prevalent than social media.
So, employers can in adopt social media policies, providing guidance to employees about social media usage, but one of the most important things is that you don't want to inform employees that they cannot make certain statements about the company, or completely restrict their saying anything about the company on social media.
The employer is usually best served by including, actually, a disclaimer right away that nothing in any kind of social media policy will be considered a violation or even a intention to restrict any employees' rights under the National Labor Relations Act. And that's what we're really worried about when we are talking about a social media policy.
Again, the National Labor Relations Act allows employees to openly discuss their employment with other employees, and also including about wages and other aspects of employment, right? So you want to make sure any kind of social media policy incorporates that, even if the employer wishes that employees would not post negatively about their employment on social media, that's not something that can be outright prohibited under the NLRA.
And understanding that even just that applies not just to unionized employees, but also to non-unionized employees, right? The NLRA does establish certain rights to concerted activity, even for non-unionized employees, even though most people recognize the NLRA really protects employees' rights to self organize and to join and assist labor unions, right? The scope of the law actually can go a lot further than that.
Another optional policy is workplace romance policies. We see those from time-to-time. Certain industries can be more prone to workplace romance than other, right? So, some employers feel more encouraged to include those kind of policies. And what you really want to do in that policy is potentially prohibit outright any kind of relationship between subordinates and managers. That's usually a firm aspect of the policy. But then, also, for other employees, sometimes employers will require disclosure of the relationship. And in certain circumstances, again, reiterating through that policy that the complaint procedures under the harassment policies still apply.
Dress codes. Again, this applies in industries more than others, and even in certain states more than others. And I say that because some states have adopted certain anti-discrimination laws, actually addressing dress codes and things like that, ensuring that employees have a right to wear clothing that's indicative of their heritage or cultural beliefs, as well as certain hairstyles, to wear their natural hair. So, it's a new wave of laws that are coming that employers really need to be mindful of and to make sure to account for in old dress code policies and understanding that those might need revision.
You know, finally, one of the most important things the handbook will do is impose requirements on the employee and make sure they understand their obligations regarding confidentiality of employer information, both during and after their employment, right?
There is good language. Sometimes, there are disclosure that need to be made in certain states regarding Defensive of Trade Secrets Act. But with that being said, the handbook should be educating employees, again, who are coming from various different education levels and backgrounds, educating them that the information they're coming into contact with every day may be confidential, may be proprietary, and that the employer has a right to protect it.
Really, finally, the risky policies, the things we really don't like, anything regarding restricting rights. We talked about that with social media, telling employees what they can and cannot do outside of work. Certain states, particularly New York where I practice a lot, the New York Labor Law specifically says, "employees in all intents and purposes have the right to do whatever is lawful outside of the workplace and the employer can't interfere with that."
So, anything that restricts rights, you want to avoid that. Anything that's impractical, meaning anything that really can't be enforced and stuff that just won't be followed. A policy that's just in the handbook for no reason, really just doesn't do anything, any employer or employee any good what so ever.
Very lastly, the most important thing that sometimes a handbook needs to have in it is the acknowledgment form. And that can be on the last page. It could be a separate document. There are also mobile apps, computer programs, where the employee can digitally sign and acknowledge the handbook. And just like the handbook might be Exhibit A at the litigation or the deposition, the handbook acknowledgment is generally going to be Exhibit B in that what it will say is that the employee read the handbook, understood the handbook, had the opportunity to ask questions, and accepted the terms. And that's also a good point, as well, to include another at-will statement and the fact that the employer has the right to modify the handbook at any time.
So, with that, thank you, everybody. We're going to make ourselves available for any questions if anybody has any with the contact information that's been provided. Thank you.