While employers generally are not required to have an employee handbook, it is considered a best practice. Some laws require employers to communicate certain information to employees in writing and an employee handbook is also valuable for employers to communicate rules and benefits to employees. After distributing your employee handbook, it's critical to ensure it remains up-to-date. We recommend reviewing it at least annually and whenever laws change. To help you prepare for 2019, we've identified a few areas in which to pay particular attention based on recent legislative trends.
#1: Sexual Harassment Policies
As a result of the #metoo movement, employers' sexual harassment prevention and response policies have faced increased scrutiny. Some states have enacted new laws to address the issue. For example, effective October 9, 2018, New York requires, among other things, that employers adopt a sexual harassment prevention policy that meets or exceeds minimum standards set by the state. Several other states also require employers to have a written policy on sexual harassment. In the absence of a state requirement, it is a best practice to have a comprehensive policy for preventing and responding to sexual and other forms of harassment. Here are some questions to address when you draft or review your policy.
Does the policy:
- State that sexual (and other forms of) harassment, discrimination, and retaliation are prohibited?
- Indicate that the company is committed to maintaining a workplace free from all forms of harassment and that harassment will not be tolerated?
- Define sexual (and other forms of) harassment and include examples of prohibited conduct?
- State that it applies to employees at every level of the organization, as well as to applicants, clients, customers, and other third parties?
- Address consequences for violating the policy?
- Set forth a clear complaint procedure and offer employees multiple avenues through which they can report potential violations?
- Encourage employees to report inappropriate conduct, without fear of reprisal, whether they are a victim or a witness?
- Assure employees that complaints will be taken seriously and the company will conduct a prompt, impartial, and thorough investigation?
- Indicate the company will maintain confidentiality to the extent possible?
- Encourage employees to respond to questions or to otherwise participate in investigations regarding alleged harassment?
- State that the company will take immediate and proportionate corrective action if it determines that a violation of the policy has occurred?
- Include any other components required by state law, such as contact information to the state's human rights commission (if applicable)?
#2: EEO Policies
Federal, state, and local laws prohibit employers from discriminating against applicants and employees on the basis of certain protected characteristics, such as age, race, sex, and religion, among others. The list of protected characteristics continues to change as states and local jurisdictions enact new laws and government agencies and courts take new positions on existing laws.
For example, several jurisdictions expressly prohibit employers from discriminating against applicants and employees on the basis of their sexual orientation or gender identity. While federal law doesn't expressly prohibit sexual-orientation or gender-identity discrimination, the Equal Employment Opportunity Commission (EEOC) has taken the position that protections on the basis of sex extend to sexual orientation and gender identity. In 2017, California became the first state to require employers to generally abide by an employee's request to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns. In light of this and other trends, employers may want to reconsider using gender-specific pronouns (such as he or she, his or her) in policies and instead use gender-neutral ones (such as, they, their). Here are some other questions to address when you draft or review your EEO policy.
Does the policy:
- Include all characteristics protected under federal, state, and local laws?
- Address who is covered by the policy, such as applicants, employees, interns, and contractors (if applicable)?
- Prohibit retaliation against employees for filing a complaint or participating in an investigation?
- Stress that all employment decisions are based upon one's qualifications and capabilities to perform the essential functions of a particular job, without regard to protected characteristics?
- State that it governs all aspects of employment, including but not limited to hiring, selection, training, benefits, promotions, compensation, discipline, and termination?
- Urge the reporting of all instances of discrimination and offer employees multiple avenues through which they can report potential violations?
- State that appropriate disciplinary action, up to and including immediate termination, will be taken against any employee who violates the policy?
#3: Sick Leave and Family Leave Policies
States and local jurisdictions continue to pass laws that require family leave and sick leave. Some leave laws require employers to have written policies outlining the leave entitlement. Even if your state doesn't require a written policy, or you choose to provide leave voluntarily, it is a best practice to have a clear policy outlining employee and employer rights and responsibilities related to leave. Here are some questions to address when you draft or review your leave policies.
Does the policy:
- Define who is eligible (including all requirements for eligibility, such as length of service and status as a full-time or part-time employee)?
- Indicate how much leave is available and how it accrues (if applicable) and whether and how much leave can be carried over?
- State whether the leave is paid or unpaid?
- Describe the types of absences covered by the policy?
- Provide procedures for how employees can request leave and how much notice they must provide (many leave laws restrict the amount of notice employers may require)?
- Address benefits continuation while the employee is on leave?
- Set forth guidelines for documentation (to confirm the absence is covered) that comply with state and local laws?
- Address job reinstatement (under most leave laws, employees must be reinstated to the position they held prior to the start of leave or a comparable position)?
- Indicate how it interacts with other leave policies?
- Prohibit any adverse action against an employee for taking leave or inquiring about their rights under the law?
- Comply with all applicable federal, state, or local laws?
Check back next week for some additional guidelines on how to review your employee handbook for 2019.