If not properly drafted, certain policies in your handbook could violate federal, state, and local laws or run counter to best practices. Here are several policies that are potentially problematic.
Avoid: Overly restrictive sick leave policies
Sick leave policies that provide too little paid time off or have overly restrictive rules on use may discourage employees from staying home when sick. Additionally, many states and local jurisdictions have enacted laws that entitle employees to paid sick leave for covered reasons.
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.
| Note: There may be situations in which you’re required to take action against an employee who uses marijuana while off-duty. For example, the U.S. Department of Transportation (DOT) states that it's unacceptable for any employee in a safety-sensitive position (and subject to DOT drug testing regulations) to use marijuana. If an employee in such a job fails a drug test for marijuana, the employee is barred from performing safety-sensitive duties until they've seen a substance abuse professional and successfully completed the DOT's return-to-duty process, which includes a drug and/or alcohol test. This is true even in locations that permit recreational marijuana use. |
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, many states and local jurisdictions expressly prohibit pay secrecy policies.
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.
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 another leave law, or the Americans with Disabilities Act cannot have that leave count against them when evaluating their attendance (or performance).
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).
Avoid: Refusing to employ anyone with a criminal conviction
Blanket policies barring candidates with criminal convictions can disproportionately affect underrepresented groups 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.
Avoid: Dress codes that prohibit specific hairstyles
Over the years, employees have filed complaints alleging their employers violated existing nondiscrimination laws by prohibiting them from wearing certain hairstyles. Courts have generally been split on whether restricting certain hairstyles violates laws prohibiting racial discrimination. In response to these cases, many states and local jurisdictions have passed laws that expressly prohibit hairstyle discrimination. Even in the absence of an express prohibition on hairstyle discrimination, enforcement agencies and employees may continue to assert that such discrimination is already barred by laws prohibiting race discrimination. Consider the potential impact of hairstyle restrictions on recruitment, morale, and retention.
Avoid: Withholding final pay until company property is returned
As a general rule, you can't withhold final pay until an employee returns company equipment. You must meet the applicable final pay deadline even if the employee hasn't returned company property. Federal law requires final pay at the next regular payday, but several states have their own rules, some of which require final pay at the time of termination.
Avoid: Unauthorized overtime/early punch-ins will not be paid
Under federal law, non-exempt employees must receive 1.5 times their regular rate of pay for all hours worked over 40 in a workweek (some states require overtime in additional circumstances and at a different rate). If a non-exempt employee has worked overtime, they must be paid an overtime premium, regardless of whether the overtime was pre-authorized. A policy that no overtime work is permitted unless authorized in advance doesn't relieve the employer of this requirement. Similarly, employers may not withhold pay for time worked if the employee punches in before their scheduled start time.
Avoid: Requiring a doctor's note for every sick day
Most leave laws allow employers to ask employees for reasonable documentation of the need for leave. However, certain laws do have restrictions. For example, some state and local paid sick leave laws prohibit employers from requesting documentation unless the employee has taken sick leave for more than three consecutive days.
Conclusion
With federal, state, and local laws as your guide, make sure you carefully consider what policies to include and what policies to avoid in your employee handbook.