United States: Employment Law Changes Impacting Employee Handbooks

For the Times, They are a Changing

For any employer, one of the best tools to prevent needless litigation is an employee handbook. However, no matter how well-written your handbook may be, as laws and regulations continuously change, the need to revisit and update the handbook in order to accurately reflect the current laws and regulations becomes significantly more important.

Over the past year, many employment laws and regulations have drastically changed. All indications— so far— are that changes to the existing employment law landscape, primarily regarding regulations, will continue. These changes create consequences for employers. Here are a few of the changes employers may face with their employee handbooks and policies. This is not an all-inclusive list of changes; other federal and state-specific changes may require updates to employee handbooks. These are merely some of the biggest changes from the past year.

Arbitration Clauses

The most significant potential change is already in the works. In January, the United States Supreme Court granted review, known as certiorari, in three cases: National Labor Relations Board v. Murphy Oil USA; Epic Systems Corp. v. Lewis; and Ernst & Young LLP v. Morris, to resolve a split amongst the nation's circuit courts regarding the National Labor Relations Board's ("NLRB") position that class-action waivers in arbitration agreements violate an employee's right to engage in protected, concerted activity.

With the increase in popularity of arbitration provisions and agreements, the Supreme Court's decision could have a significant impact on all arbitration provisions in many employers' handbooks. Employers maintaining or considering arbitration provisions should also verify that such policies are compliant with state-specific laws. Other disclaimers and notices in the employee handbook could undermine the enforceability of arbitration agreements.

Social Media

Social media has become an issue in employment that employers can no longer ignore. In 2016, nearly 78% of Americans had a social media profile. While employers may not necessarily be able to control or prevent what employees post on social media, it is still important that employers take action to monitor employees' social media activity. Otherwise an employer may end up on the hook for its employees' posts on social media.

When drafting social media policies, the policy should be specific. In 2016, the NLRB reviewed a fast food company's policy which prohibited employees from using social media to post incomplete, confidential, or inaccurate information about their workplace, or from making disparaging, false, or misleading statements about the company. The NLRB determined that the policy violated the National Labor Relations Act ("NLRA") because an employee could construe the policy to interfere with his or her collective bargaining rights.

Even though a workplace may not be unionized, the NLRA still applies. Defining the scope of the social media policy prevents a lot of the issues that arose from the company's social media policy. Many employers may find it easier to leave the policy vague and add a disclaimer that it is not intended to violate NLRA rights. However, the policy had such a disclaimer, and the NLRB still found it violated the NLRA. Careful drafting of a social media policy is paramount when it comes to employees posting company information on social media platforms.

Preventing a Hostile Work Environment

Some form of a policy to "be nice to one another" is a seemingly obvious handbook provision. The natural tendency of most employers is to use the employee handbook to promote a courteous and polite work environment, and typically the handbook contains language to that effect. Despite how innocuous this proposition seems, employers should be wary.

The NLRB recently considered several rules that promoted a positive work environment. For instance, a cell phone provider implemented a policy that employees should "maintain a positive work environment by communicating in a manner that is conducive to effective working relationships." Similar to its finding with the fast food company, the NLRB took issue with the rule's vagueness. The NLRB found the rule could have a chilling effect on employees exercising their workplace collective bargaining rights to organize a union because the rule could be reasonably interpreted to restrict concerted union activity.

Employers can and should still use the handbook to promote a positive work environment. However, employers must be aware of vague policies, which generally leave them exposed to unnecessary liability. The policies should be written with specificity and a defined scope. The employer's fishing net should not snag protected fish.

Whistleblowing

Employers should also ensure that policies cannot be construed to discourage employees from reporting potential legal violations to government agencies. A consistent theme amongst many administrative agencies is to police potential retaliation for whistleblowing. Many of these agencies start by looking at a company's own policies. 

For example, in December, the Occupational Safety and Health Administration ("OSHA") began enforcing new anti-retaliation rules. These new rules prohibit employers from retaliating against employees for reporting workplace injuries. One instance of potential retaliation is the use of drug testing in retaliation for reporting workplace injuries. An employer must have a reasonable basis for a drug test following the reporting of a workplace injury. Other agencies, such as the Equal Employment Opportunity Commission ("EEOC"), have followed suit tightening their anti-retaliation regulations as well.

Employers may be better off simply informing employees of their right to report legal violations. The Defend Trade Secrets Act of 2016 rewards employers for doing so. The Act allows businesses to recover attorney fees and enhanced damages for employees misusing trade secrets. However, an employer must first provide notice to employees about their right to immunity for reporting illegal activity to a government agency. A good policy would be to include such notices in confidentiality agreements.

Weapons Policies

Over the past few years, several state legislatures have passed statutes allowing the concealed carry of firearms. These statutes place employers in a unique position when attempting to regulate the workplace. Last year, at least one State Supreme Court ruled that terminating an employee for having a gun inside their vehicle on company property was "legally impermissible." 1

The Mississippi Supreme Court recently interpreted a new statute that expressly restricted employers, public or private, from enforcing a policy or rule prohibiting "a person from transporting or storing a firearm in a locked vehicle in any parking lot." 2 The Mississippi legislature essentially prohibited employers from terminating an employee for having a firearm in their vehicle.

As more states move to adopt or strengthen concealed carry laws, employers should remain aware of changes in the law and how they may affect the workplace. Outdated employee handbooks containing policies that potentially violate new statutes or regulations expose employers to unforeseen liability.

Required Notices

Many employment laws place a burden on employers to notify employees of their rights. Normally, employers must hang posters in the workplace with information regarding such laws. However, some laws take the burden a step further by requiring employers to include notices in the employee handbook. For example, the Family Medical Leave Act requires information regarding an employee's rights under the Act to be provided in both the employee handbook and in a workplace poster.

Employers should be especially cognizant of state-specific laws that require a notice in the employee handbook. New York recently passed the Paid Family Leave Program, which will be phased in beginning January 1, 2018. The Program requires employers to place a notice of rights in the employee handbook. Failing to consider state law compliance in assembling or updating an employee handbook could place the employer at risk. Similarly, using the same handbook in several different states without ensuring they comply with each state's law could also have consequences.

Conclusion

These are just a few of the rapidly changing laws and regulations employers face when operating with an outdated employee handbook. Given the changes in law and the new direction of many administrative agencies, the old adage "the sooner the better" applies now, more than ever, to employers in their need to revisit the old employee handbook. The best practice is to have your company handbook reviewed annually and updated every two years. With the best practices, you will be able to keep up with these changing times.

Footnotes

1 Swindol v. Aurora Flight Scis. Corp., 194 So. 3d 847, 853 (Miss. 2016).

2 id. At 854.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Meryl Mills
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