By Mary Moffatt
The new year is always a good time to review employment policies and consider updates for the coming year. This article will address some of the more prominent legal issues that may require attention in the handbook.
- Federal Law and Policy Developments
President Biden has openly stated he intends “to be the most pro-union President leading the most pro-union administration in American history.” (Presidential Remarks, September 8, 2021.) Biden has also signed two (2) Executive Orders on LGBTQI+ rights, most recently in June of 2022. Employers should consider these administrative goals when reviewing the handbook as well as in planning for employee and managerial training in the coming years.
In December 2022, Congress passed the Respect for Marriage Act, which prohibits states from denying the validity of out-of-state marriages based on sex, race or ethnicity. While generally an employment handbook does not include policies addressing marriage, or LGBTQI+ issues directly, given these clear trends, employers should review existing EEO, nondiscrimination and non-harassment policies with these administrative goals in mind. In addition, employers may consider revising handbook verbiage to avoid reference to husband/wife, or pronouns referencing specific genders.
Earlier in 2022, Congress passed the Ending Forced Arbitration in Sexual Assault and Sexual Harassment Act. This act voids pre-dispute arbitration clauses in certain cases, including those involving sexual harassment and misconduct allegations. Although it is not a violation per se to have arbitration policies in the handbook, it can certainly create confusion and enforcement issues, as the policies cannot be enforced with respect to sexual harassment or sexual assault matters. In addition, the Act applies to arbitration clauses in other documents such as separate contracts and agreements.
On July 9, 2021, President Biden signed an Executive Order encouraging the Federal Trade Commission “to consider…the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” Employers should take a close look at non-compete, non-solicitation provisions in the handbook and in separate agreements, or any other policies which might “limit worker mobility,” particularly where the company has multi-state locations.
- More COVID
Most everyone on planet Earth has grown weary of COVID and its related issues; however, it does bear mentioning with respect to updating employment policies. Employers should consider an infectious disease/employee protection policy which would advise employees as to the steps management would take in the interests of employee safety, such as following established guidelines set by the CDC, OSHA or other public health officials in the event a communicable disease or other emergency impacts business operations.
In addition, employers should consider including a provision that permits the suspension of handbook policies based on company discretion in the event of national or local emergencies, pandemics, weather issues, or other events that create disruptions in normal business operations.
III. Remote Work
COVID certainly brought about changes in the workplace, and none more so than the increase of remote work, which is likely here to stay in some form in the workplace. Depending on the nature of the work, the position held, the employer’s location and other related factors, it is important for employers moving forward from the pandemic to evaluate which positions can be performed remotely. Employers should focus on the job rather than the individuals holding those jobs and consider the relevant job descriptions, job duties, security issues, productivity metrics, and the ability to enforce other employer policies in determining whether a position can be effectively performed remotely.
Employers should also consider establishing boundaries and expectations for working from home such as work schedules, securing confidential company information during or at the end of the workday, adherence to break times, etc. Employers should require employees to keep accurate records of all time worked, and should establish guidelines for when, what and how remote work may be performed.
Apart from handbook policies, it is also important for employers to be prepared to address some of the drawbacks to remote work such as increasing the availability of employee communication with management, providing effective wellness programs to include mental health concerns, encouraging work-life balance to avoid employee burn-out and ensuring compliance with the FLSA (29 U.S.C.§201 et seq.) by verifying that employees do not perform work when they are supposed to be “off the clock.”
With more remote work, and the increase of cyber-risks, employers should frequently and regularly review and update data security policies and protocols in the workplace, which are increasingly necessary to protect company trade secrets, business operations, employee data and confidential business information. Training is essential in this area and employers should work with their IT department or third-party for input in training. Employers should consider the type of information a remote worker will access or possess while working remotely. These data protection policies and protocols are necessary for all employers, regardless of whether the company allows remote work or not.
In addition, employers should consider whether “remote work” is broad enough to allow the employee to work from the coffee café at an out-of-state beach location, or whether “remote work” is limited to the employee’s place of residence. Obviously, the cybersecurity challenges are very different depending on where the employee is performing the “remote work.” Employers who allow remote work to be performed routinely from another state should consider state-law differences and ensure compliance with those state laws.
IV. NLRA Concerns
Given the pro-Labor stance from the Biden Administration, including 2021 and 2022 memos from NLRB GC Abruzzo, employers must take care to balance policies with employees’ rights under the National Labor Relations Act (NLRA), which covers most private employers regardless of union presence. Employers should review workplace conduct policies, as well as policies which place limits on the use of personal devices or company-provided technology/computers, or that restrict workplace communications or the use of business information. Such policies should be drafted carefully so as not to interfere with employees’ Section 7 rights (29 U.S.C. §157) under the NLRA. If concerns are based on proprietary business protections or confidentiality issues, try to include that reasoning in the policy to reduce the chances of trampling on employees’ protected rights.
V. Americans with Disabilities Act (ADA) Accommodation Policies
It is increasingly important for employees to include an ADA accommodation policy where the employer is subject to the ADA or other accommodation requirements under state law. The policy should provide that the employer will engage in the interactive process and will assist employees with disabilities in assessing requests for reasonable accommodations. The policy should provide guidance on making requests for reasonable accommodations but of course, supervisors and managers should still be trained to recognize those situations where an accommodation is or may be needed even if the employee does not specifically request one, because employees are not always aware that an accommodation might be available.
VI. Consider State Laws
Employers with multi-state locations must be mindful of applicable state laws when updating the employee handbook. Policies which are inconsistent with state law can present compliance and liability issues as well as morale issues when employees perceive inconsistency in the company policies. While it is a good idea to include a provision that the employer will always adhere to applicable federal and/or state law when applying and interpreting the policies, in some cases that may not be sufficient where a policy, implemented as written, is a violation of state law.
Tennessee recently passed the CROWN Act, effective July 1, 2022, entitled “Creating a Respectful and Open World for Natural Hair.” The law renders void any employer policy or practice that prohibits braids, locs, twists, or any manner of hairstyle that is part of the cultural identification or physical characteristic of the employee’s ethnic identity. There are health and safety exceptions, but employers may want to update dress code policies to coordinate with the CROWN act. (TCA §50-1-313).
In addition, Tennessee employers must now allow veteran employees to take unpaid leave on Veterans’ Day/November 11 each year, provided the employee complies with the statutory requirements, including at least one-month’s written notice to management of his/her intent to take leave on Veterans’ Day. (TCA §15-1-105).
V. CONCLUSION
This article has focused on workplace trends and recent legal developments that may impact handbook policies. However, it is also important to review the “must-have” policies for updates, such as the Company introduction, a clear procedure for reporting complaints, disciplinary rules, and required leaves of absence policies where applicable such as the federal Family and Medical Leave Act and/or the Tennessee Family Leave Act (TCA §4-21-408). Employers should also make sure all the required workplace posters are up to date. A full review of legal requirements for handbook policies is beyond the scope of this article so, it is always advisable to include legal counsel in the review and updating process or at the very least, have legal counsel review the final draft prior to finalizing the handbook for publication.
Wimberly Lawson Wright Daves & Jones PLLC
Morriistown, Tennessee office
[email protected]