Legal and regulatory changes—more than new laws—are driving the need for company policy adjustments, revised plan documents and updated employee handbooks for 2013 by U.S. employers.
As an example, what attorney Elisabeth Blattner-Thompson of the Salt Lake City firm Ballard Spahr called “the aggressiveness of the National Labor Relations Board in protecting employees’ Section 7 rights,” is prompting cautious HR professionals to reconsider policies in such areas as social media, at-will disclaimers and confidentiality, she wrote SHRM Online in an e-mail message. Other potentially troublesome enforcement action on the part of the U.S. Equal Employment Opportunity Commission (EEOC) could prompt more changes.
“President Obama’s re-election will likely result in continued increased scrutiny for employers,” wrote Andrew Singer of Tannenbaum Helpern Syracuse & Hirschtritt in New York to SHRM Online in an e-mail interview. He added, “It is important that employers take a comprehensive look at what policies need to be revised or added.”
There is, experts say, a lot to consider.
Social Media Policies
“The NLRB has an ever-increasing focus on social media policies, making sure they don’t run afoul of regulations giving employees the opportunity to organize,” said Jason Carney, SPHR, director of HR for Work Smart Systems of Indianapolis.
For example, if a company says employees aren’t allowed to bad-mouth or even discuss their employer in social media, regulators may conclude that impedes the right to complain about working conditions with coworkers. “There have been a slew of cases where the NLRB has recently found illegal firings due to Facebook postings and other social media issues,” wrote Fort Lauderdale employment attorney Donna Ballman in an e-mail to SHRM Online. “Policies that prohibit ‘offensive,’ ‘demeaning’ or ‘inappropriate’ comments are likely over broad” in the board’s view, she wrote.
Ballman, author of Stand Up For Yourself Without Getting Fired (Career Press, 2012)
added, “Some states have passed laws against demanding employee social media passwords, and there’s federal legislation pending as well that may protect employees from this type of intrusion.”
An exception to the NLRB’s password position says that employers may ask for personal social media information if it’s relevant to an ongoing investigation.
In a related policy nuance, however, the labor board has questioned the propriety of instructing an employee witness in an investigation to keep the discussion confidential. Why? Attorney Michael Lotito, SPHR, of Littler Mendelson in San Francisco said the board’s concern is that mandatory confidentiality “could interfere in the employee’s right to protected and concerted activity by employees sharing workplace concerns with other people.” Lotito told SHRM Online that companies should evaluate their policies dealing with investigations, whether related to social media or not.
Employment-at-Will Statements and Handbook Receipts
The NLRB’s concern about at-will policies in employee handbooks is that even if they state that both employee and employer are free to end the relationship at any time, the policies must “make clear that employees still have the right to collectively bargain and participate in concerted activities to improve working conditions,” explained Ballman. “It’s a fine line that management-side attorneys will have to walk when re-drafting these clauses.”
Jonathan Segal of Philadelphia’s Duane Morris law firm described a related concern: “Assume your employee handbook says [all workers are under] employment at-will and employees are asked to sign an agreement saying, ‘I agree to be bound by the handbook.’ ” That agreement, he told SHRM Online, “can be called interfering in employee’s right to engage in union activity.” Segal suggested that companies have employees sign an agreement that is simple and short: “ ‘I acknowledge receipt of the handbook,’ and nothing more.”
Similarly, handbooks commonly describe a company policy that employees must not disclose information deemed confidential. “But if that prohibition keeps employees from sharing personnel information, revenues, expenses or training materials,” noted Ballman, the NLRB might also say the policy “violates their right to discuss working conditions.”
The same charge could be brought if a company has a policy prohibiting employees from disparaging the company.
Automatic Termination Policy
“The EEOC has ramped up how they’re looking at inflexible leave policies, to make them ADA [Americans with Disabilities Act] compliant,” said Carney. For example, the EEOC has taken enforcement action against companies that allegedly failed to offer reasonable accommodations to employees with disabilities who exhaust the time off allowed under the Family Medical Leave Act (FMLA), and instead terminate those employees. EEOC asserts that both of those alleged practices violate the ADA.
Segal says such automatic termination policies increase exposure to class action suits. “Before an employee is terminated, you need to reach out to suggest some kind of accommodation,” he warned.
California Handbook Updates
Several changes in law and enforcement in California stand to affect companies doing business there. The state’s Fair Employment and Housing Act has been “clarified to state that religious accommodation extends to dress and standards of grooming, including head covering, facial hair and religious jewelry,” wrote San Diego attorney Ann Bradley of Duane Morris in an e-mail to SHRM Online. She added that companies “can’t exclude [such employees] from customer-facing roles.”
Some other 2013 changes in California:
- Companies must describe in writing the method by which employee commissions are computed, and obtain signed document receipts from each affected employee. When commission formulas change, new signed receipts are required.
- Upon request, employees now will be entitled to copies of anything contained in their company personnel files, not just documents they have signed.
In November 2012, three more states voted to recognize same-sex marriage, bringing the total to 12 plus the District of Columbia. Ten states recognize same-sex civil unions, which are marriages in all but name. However, the Defense of Marriage Act (DOMA) passed by Congress in 1996 sets the federal definition of marriage as between a man and a woman. The U.S. Supreme Court has decided to take up the question this term; its decision may or may not bring major changes.
What does HR do in the meantime?
Dawn Davidson Drantch, in-house counsel for Alcott HR, an outsourcing firm in Farmingdale, N.Y., had a simple solution: “[M]arital status, generally, should be enumerated in the handbook as a protected class (if in fact it is in a particular state) and then no changes need be made” to the handbook if the law changes, she wrote in an e-mail interview with SHRM Online.
Lotito said there are issues with respect to off-duty personal behavior that is sanctioned by state law. “You need to be careful the handbook doesn’t interfere with individual rights,” he said.
Other HR Safeguards Recommended for 2013
In addition to urging HR professionals to keep their written policies up to date, Lotito said HR professionals should compare their handbooks with relevant benefit-plan documents “to make sure there is consistency.”
Cornelia Gamlem, SPHR, co-author of The Big Book of HR (Career Press, 2012), suggested adding some protective handbook language to allow for legal changes that may be overlooked. “You always want that caveat in there, [words such as] ‘any other protection afforded by state and local laws.’ ”
Policy reviews should not be just a New Year’s exercise. Carney pointed out that many laws take effect on July 1. “I think there should be a six-month review of employee handbooks.”
Steve Taylor, a Washington, D.C., reporter for Fox News Radio, is a freelance writer based in Reston, Va.
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