Federal and state legal developments over the last year brought a lot of changes that impact workplace policies and procedures, making it critical for companies to review their handbooks for compliance.
“2016 was the busiest year I can recall in this regard,” said Elaine Diedrich, an attorney with Littler in Pittsburgh.
Workplace rules and regulations may continue to change under President Donald Trump’s administration, but employers should make sure their handbooks are up to date under current laws, she added.
Trump has made overtures that regulations will be pulled back, and if that happens, it could be positive for businesses that have been struggling to keep up with all of the latest changes, said Jason Keck, an attorney with Fisher Phillips in Chicago.
In the meantime, employers should take a close look at their policies. From National Labor Relations Board (NLRB) decisions to local paid-sick-leave laws, here are some of the important changes to note from the past year.
1. NLRB Decisions
“At the federal level, we’ve seen a lot from the NLRB,” Keck said. Employers should review their social media policies, keeping in mind the board’s Aug. 18, 2016, decision that found that Chipotle’s social media policy prohibiting employees from “posting incomplete, confidential or inaccurate information” violated the National Labor Relations Act (NLRA).
The board said that “in order to lose the act’s protection, more than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive.”
Employers also should examine and possibly rewrite “any policy that simply tells employees they need to act professionally and in a positive manner or be nice to customers,” Diedrich said.
The board’s decision in T-Mobile U.S.A. Inc. (April 29, 2016) found that several workplace rules were unlawful, including a rule about maintaining a positive work environment.
The NLRB said employees could reasonably interpret the rule to restrict “potentially controversial or contentious communications and discussions,” including those involving their right to join a union and bargain collectively.
Also review policies about recording in the workplace, media inquiries, reference checks and policies that prohibit disparagement of the employer, Diedrich added.
Keck noted that the U.S. Supreme Court will eventually weigh in on the NLRB’s position that class-action waivers in arbitration agreements violate an employee’s right to engage in protected, concerted activity.
Until then, employers will have to assess whether to have a class-action waiver in their handbook, he said.
2. Reporting Violations
Make sure handbook provisions don’t discourage employees from reporting potential legal violations to government agencies:
- The Defend Trade Secrets Act of 2016 provides businesses with a legal remedy if trade secrets are misused. However, for employers to receive attorney fees and other enhanced damages, they must provide workers with notice about their right to immunity if they report potentially illegal activity to a government agency or an attorney, Diedrich explained.
- The Occupational Safety and Health Administration began enforcing new anti-retaliation provisions on Dec. 1, 2016. Under these rules, employers can’t retaliate against employees for reporting a workplace injury. “The agency noted that it would be looking at [businesses’] policies to ensure they would not lead a reasonable employee to believe such retaliation may occur if they reported an injury,” Diedrich said.
- The Equal Employment Opportunity Commission and the Securities and Exchange Commission also have targeted any policy or agreement that may be interpreted to curb an employee’s right to go to these agencies—or other agencies—to report violations of the law, she added, suggesting that employers add language to address this in the handbook.
3. Background Checks
Todd Lebowitz, an attorney with BakerHostetler in Cleveland, said employers need to take a look at their background check procedures to make sure they align with local laws.
“Many [cities] now have ban-the-box laws that prohibit asking criminal background questions in the initial application,” he said. “These are constantly being added across the country to prohibit criminal background questions before a conditional offer of employment is made.”
4. Minimum-Wage Changes
“There are lots of new minimum-wage laws taking effect in 2017,” Lebowitz said.
Nineteen states raised the minimum wage at the start of the new year, and Maryland, Oregon and Washington, D.C., will see wage hikes in July, according to the National Conference of State Legislatures.
Cities may also have their own local minimum-wage laws that will take effect this year.
5. Drug Testing Rules
Keeping up with drug testing policies can be a challenge for multistate employers because every state is different, Keck said. The legalization of marijuana in many states has added to the confusion.
The new U.S. attorney general, Jeff Sessions, “has been very outspoken about marijuana being illegal,” Keck said. “When states go against the federal law, it puts employers in limbo.”
6. Weapons Policies
Businesses should also review their weapons policies, Lebowitz said.
“Many states give concealed-carry holders the right to keep guns in their locked cars, but some employer policies say no weapons are allowed anywhere on the premises, including parking lots,” he said. “That’s too broad in some states.”
7. Paid-Sick-Leave Laws
The number of paid-sick-leave laws at the state and local level is increasing all the time, and keeping up with them can be a job all in itself, Diedrich said.
These laws aren’t just about the amount of sick leave employees need to be offered, she said. “Employers also need to stay compliant with those laws in the areas of waiting periods, notice and certification requirements.”
8. Employer Size
Many workplace laws only kick in after a business reaches a certain threshold number of employees. For example, Title I of the Americans with Disabilities Act—which has its workplace provisions—applies only to employers with 15 or more employees.
Furthermore, some laws are tiered and apply different requirements for small and large businesses.
Employers should look at their headcount to determine if any changes triggered new compliance obligations.
“Did your company grow this year and reach 50 employees in any one location?” Lebowitz asked. “Congratulations! You now need a Family and Medical Leave Act policy!”
There are lots of new laws in a variety of areas, and it’s important for businesses to spend the time and money to update their policies in real time, Keck said. They should keep in touch with law firms and trade organizations and set up alerts to tell them when new laws come out, he added.
“That should trigger the HR professional to look at policies to see if they need to be updated.
“The handbook is part and parcel to defense,” he noted. “If you send it to your counsel to review and make suggestions, it benefits both counsel and the employer.”
By Lisa Nagele-Piazza, SHRM-SCP, J.D.Feb 15, 2017