Last week, we identified six policies you should consider avoiding because they may violate laws or run counter to best practices, along with guidelines to consider instead. Here are six more:
Avoid: Prohibiting lawful off-duty conduct.
Several states prohibit employers from taking adverse action against employees and applicants who use tobacco. Some states also protect employees who use marijuana while off-duty. Additionally, a few states expressly prohibit employers from taking adverse action against individuals on the basis of any legal off-duty conduct.
Best practice: Even if your state doesn't expressly protect employees from legal off-duty conduct, it's not considered a best practice to have a policy limiting lawful, off-duty conduct.
Avoid: Pay secrecy.
Under Section 7 of the National Labor Relations Act (NLRA), employees have, among other things, the right to act together to improve wages and working conditions and to discuss wages, benefits, and other terms and conditions of employment, with or without a union. The National Labor Relations Board (NLRB), which enforces the NLRA, and many courts have found that pay secrecy or pay confidentiality rules violate Section 7 rights. Additionally, some states and local jurisdictions prohibit pay secrecy policies.
Best practice: Avoid employment actions or implementing policies that could be construed to restrict employees' rights under the NLRA. Instead, take steps to better communicate information about your company's compensation program and how employees' salaries and wages are determined.
Avoid: Probationary/introductory periods.
Probationary or introductory periods are sometimes used to assess a new hire's performance but can lead to confusion regarding "at-will" status. At-will generally means that either the employee or the employer may terminate the employment relationship at any time, for any lawful reason. When employers use probationary periods, employees sometimes think that once they successfully complete a probationary period, they are no longer at risk for termination based upon their performance. This misunderstanding can lead to increased risk of wrongful termination claims. Additionally, the term "probationary period" may have a negative connotation. New hires may misinterpret "probationary" to mean that they are immediately placed on a disciplinary action plan at the start of their employment.
Best practice: Whether it's an "introductory period," "training period," or "orientation period," they all generally run the risk of confusing employees about their employment status. Instead, create a development plan, set clear performance goals, and hold regular check-ins with all new hires to ensure they're meeting performance expectations.
Note: At-will employment is recognized in every state but Montana. In that state, employers must have "good cause" (as defined by state law) to discharge an employee after the employee completes an initial probationary period. If an employer doesn’t establish a specific probationary period or provides that there is no probationary period prior to or at the time of hire, the probationary period is assumed to be 12 months from the date of hire, which can be extended to up to an additional 6 months by the employer. The law also has rules for notifying a discharged employee of any written internal procedures under which an employee may file an appeal with the employer about a discharge. As such, in Montana, the factors to consider when determining whether to have a written policy on probationary periods are different.
Avoid: No-fault punctuality and attendance rules.
No-fault policies generally subject an employee to a specific form of discipline if they are absent or tardy a certain number of times, regardless of the reason. These types of policies can be problematic if one or more absences are protected under federal, state, or local laws and the employer still counts the absence against the employee. For example, employees who have the right to take leave under the Family and Medical Leave Act, a state or local paid sick leave or COVID-19 leave law, or the Americans with Disabilities Act cannot have that leave count against them when evaluating their attendance (or performance).
Best practice: Employers are permitted to adopt a policy that subjects employees to discipline for excessive, unapproved absences, provided that employees aren’t subjected to adverse action for taking leave to which they are entitled under the law. If you adopt a policy, make sure you have safeguards in place to avoid violating these laws.
Avoid: Discipline policies that lack flexibility.
Disciplinary action provisions should give the company flexibility to act based on the facts and circumstances of each case. If drafted incorrectly, discipline policies may lock you into taking one course of action, such as policies that indicate a verbal warning will be given for all first offenses, a written warning for all second offenses, and so on (commonly known as progressive discipline).
Best practice: Avoid policies that restrict your ability to decide what type of discipline is appropriate given the severity of the offense and the employee's history of misconduct. State that violations may result in disciplinary action, up to and including termination, and that the company reserves the right to decide what disciplinary action to take in any given situation. Keep in mind, however, that treating employees fairly is key and similar situations and past practices should guide and impact the disciplinary action that you take.
Avoid: Refusing to employ anyone with a criminal conviction.
Blanket policies barring candidates with criminal convictions can disproportionately affect minorities and other protected groups and may violate the law. For instance, some states protect employees who have been convicted of a crime unless the conviction relates to the individual's job duties. The Equal Employment Opportunity Commission (EEOC) says that an employer cannot simply disregard a candidate because they've been convicted of a crime.
Best practice: Don't automatically take an adverse employment action against an applicant or employee because of a criminal conviction. Instead, evaluate how the specific criminal conduct relates to the duties of a particular position. When making this assessment, consider a variety of factors, such as the facts and circumstances surrounding the offense, the timing of the offense, the number of offenses for which the individual was convicted, rehabilitation efforts, and employment or character references. See the EEOC's guidance for more information, review applicable laws, and seek legal counsel before making employment decisions because of a conviction.
Review your employee handbook regularly to ensure it stays current with developments in federal, state, and local laws as well as best practices.