Professional Service Agreement

5 Employee Handbook Issues to Watch in 2018

January 08, 2018

The federal government's focus on deregulation combined with active state legislatures and municipalities mean a cookie-cutter employee handbook isn't a realistic option for employers. Handbooks should be reviewed regularly to ensure compliance. Employers should be particularly attentive to state and local laws on leave entitlements, background checks, and wage and hour requirements, as well as newer areas including drug-related laws and guns in the workplace. Here are some of the key issues employers should monitor in 2018 that may trigger a handbook update.

Workplace Conduct and Social Media. With a Democratic majority under President Barack Obama, the National Labor Relations Board (NLRB) scrutinized social media policies and other workplace conduct standards that could have limited workers' right to engage in protected concerted activity. The pendulum is expected to swing the other way under President Donald Trump. For example, the NLRB's new general counsel, Peter Robb, issued a memorandum rescinding prior memos that led to the NLRB's close scrutiny of handbook and policy provisions. Already,the NLRB has overruled a previous standard striking down employer policies if they could be "reasonably construed" to curb employee discussions about wages and working conditions—even if the policies weren't intended to do so. The NLRB's new standard will consider whether the employer has a legitimate justification for the rule.

Arbitration Agreements. Employers should pay close attention to the pending federal cases relating to the enforceability of arbitration agreements and class-action waivers to make sure their handbooks comply with the relevant rulings, The law in this area is in a state of flux, but a ruling from the U.S. Supreme Court should be coming soon.

Sexual Harassment. Sexual harassment news has swept across the country as leading men in Hollywood and politics have been ousted due to a flurry of allegations. Therefore, it's a good time for HR professionals to take a look at their anti-harassment policies and procedures to make sure they're up to par. Policies need to adequately tell employees how to register a complaint, and they need to give workers multiple outlets for complaining. State requirements must be taken into account as well. In 2017, these states revised sexual harassment training requirements:

  • California. The state has expanded current supervisor training requirements. Covered employers must add to their harassment prevention training content on harassment based on gender identity, gender expression and sexual orientation. The training and education must include practical examples inclusive of harassment based on gender identity, gender expression and sexual orientation, and must be presented by trainers or educators with knowledge and expertise in those areas.
  • Maine. Maine's amended sexual harassment training law requires employers in the state with 15 or more employees to use a compliance checklist provided by the state's Department of Labor to develop a sexual harassment training program and keep a record of any training conducted for three years. The amended law also establishes the penalties an employer may face for failing to comply.

Parental Leave. States are starting to expand their parental leave laws. In California, for example, businesses with 20-49 employees will need to offer job-protected baby-bonding leave starting in 2018. Related policies shouldn't have separate baby-bonding rules for mothers and fathers. While employers can have separate standards for mothers during the time they are disabled by pregnancy, parental leave policies should use terms like "primary caretaker" and "secondary caretaker." These policies and practices should be reviewed in conjunction with Family and Medical Leave Act (FMLA) guidelines for larger employers.

Disability and Other Accommodations. Employers need to understand that their obligation to provide leave could go beyond the 12 weeks afforded under the FMLA. For example, a request for intermittent leave to treat a medical condition may be a reasonable accommodation under the Americans with Disabilities Act (ADA). The 7th U.S. Circuit Court of Appeals recently ruled that, while the ADA may require brief periods of leave, an extended leave of absence beyond FMLA time isn't a reasonable accommodation. However, the Equal Employment Opportunity Commission (EEOC) and other courts disagree with the 7th Circuit. Therefore, employers should carefully review their policies and keep up with developing laws in this area.

Medical marijuana case law is also evolving. In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs because of their medicinal use could bring claims under state disability laws.

Lactation and pregnancy accommodation requirements have also passed in some jurisdictions, such as San Francisco, Connecticut, Massachusetts, Nevada, Vermont and Washington state.

The Bigger Picture. HR professionals should ask themselves what the purpose of the employee handbook is and what essentials should be included. Otherwise, the handbook could start to mimic a code of regulations. A solid handbook will include equal employment opportunity policies and internal complaint procedures; legally required policies, notices and disclaimers; and likely an employment-at-will statement. Other provisions may depend on the specific employer, the state, and the handbook's purpose.