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5 Employee Handbook Updates to Watch in 2018

March 06 - Posted at 1:00 PM Tagged: , , , , , , , , ,

When was the last time the company handbook was reviewed? It’s a worthy priority for the new year—or anytime, really. Handbooks are living documents that should be reviewed regularly, especially considering the federal government’s focus on deregulation and ever-changing updates from state legislatures and municipalities. Here are five key issues that may trigger updates:

1. Workplace conduct and social media

Under former President Barack Obama, the National Labor Relations Board (NLRB) scrutinized social media policies and other workplace conduct standards that may limit workers’ rights. For example, in many cases the board considered employee social media posts that are critical of employers a form of protected concerted activity and thus not necessarily grounds for disciplinary action. 

With the Trump administration, the pendulum may swing the opposite way, giving employers more leeway to develop workplace conduct rules, said Bruce Sarchet, an attorney with Littler in Sacramento.

Already, the board overruled its previous standard that struck down policies if they could be “reasonably construed” to curb employee discussions about wages and working conditions—even if the policies weren’t intended to do so. “With [the] signal of a sea change in NLRB policy, employers need to pay close attention to the board’s new ‘policies on policies’ as they develop,” said Bonnie Martin, an attorney with Ogletree Deakins in Indianapolis. In the meantime, make sure your handbook’s conduct guidelines are specific and clear. 

2. Sexual harassment 

With sexual harassment news sweeping the country, make sure your policies spell out exactly how employees can complain and give people multiple outlets for doing so. “Having a policy that requires employees to report incidents to their supervisor isn’t helpful if the supervisor is the one doing the harassing,” said Randi Kochman, an attorney with Cole Schotz in Hackensack, N.J.

Take state requirements into account as well. California, for example, has mandated that content on harassment based on gender identity, gender expression and sexual orientation be included in supervisor training. The change took effect Jan. 1. 

3. Parental leave

Leave laws are expanding in many states. In California, for example, businesses with 20-49 employees must offer job-protected baby-bonding leave beginning this year.

Workers in New York will be eligible for paid family leave in 2018, and even in states without such provisions, many businesses are opting to provide paid parental time off. 

When updating handbooks, don’t include separate baby-bonding rules for mothers and fathers, Kochman said. While employers can include differing standards for mothers regarding the physical limitations imposed by pregnancy, they should use genderless terms such as “primary caretaker” in their parental leave policies.

4. Disability and other accommodations

An employer’s obligation to provide leave could go beyond the 12 weeks afforded under the federal Family and Medical Leave Act. For example, a request for intermittent leave to treat a medical condition may be considered a reasonable accommodation under the Americans with Disabilities Act.

While the 7th U.S. Circuit Court of Appeals ruled that leave that extends beyond FMLA isn’t considered a reasonable accommodation, the Equal Employment Opportunity Commission and other courts disagree. 

That’s why it’s important to carefully review policies and keep up with developing laws.

Medical marijuana case law is also evolving. In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs for using the drug could bring claims under state disability laws.

“HR professionals should review their drug-testing policies and practices and consider consulting counsel before taking any adverse action following a positive drug test for marijuana in a state in which medical or recreational use is legal,” said Cheryl Orr, an attorney with Drinker Biddle in San Francisco.

5. The bigger picture

With all the state and local changes, it may no longer work to have a single handbook with blanket policies for workers in different locations. “Now is a good time to add state supplements to the handbook that are distributed only to employees within the relevant state,” said Jeffrey Pasek, an attorney with Cozen O’Connor in Philadelphia.

What Employers Legally Can and Can’t Ask During a Job Interview and Salary Negotiation

January 19 - Posted at 3:00 PM Tagged: , , ,

“Where are you from?” It’s an easy conversation starter and suitable in most settings except a job interview.

So too, are other common social inquiries like, “Are you married,” “When did you graduate,” or “Have I seen you at my church?” Asking a candidate the questions may signal a red flag to the prospective employee as well as signal a lack of understanding of workplace anti-discrimination laws, or worse, no concept of workplace diversity.

The above examples can lead to information about a candidate’s national origin, marital status, sexual orientation, age, or religion. It is illegal to ask any questions that may illicit information about any status protected by federal, state, or local laws. The interviewer’s questions should stay focused on top-level priorities related to the job’s essential duties, such as the candidate’s work history as it pertains to the position, or availability for certain work shifts.

Other inappropriate interview questions include:

  • Have you ever been arrested?
  • Is English your native language?
  • Are you a US citizen?
  • Are you planning on having children?
  • Have you ever been injured on the job?
  • How many sick days did you take last year?
  • Why were you discharged from the military?
  • Do you like to drink socially?
  • When is the last time you used illegal drugs? (But not: Do you currently use illegal drugs?)

Not always so easy

A trickier area is when candidates might need a religious or disability-related accommodation. An employer has to walk a fine line of not asking improper questions about these two protected categories, while not ignoring the obvious. The Supreme Court's 2015 decision in the Abercrombie & Fitch case, involving the interplay of its dress code policy and a job candidate who wore a hijab to an interview, shows how difficult this balancing act is. 
It’s up to the candidate to speak up and request a reasonable accommodation to assist in the interview and application process (though to be clear, accommodation requests related to the job itself belong in the stage between an offer being made and the start date).

Post-offer considerations

Receiving a job offer may lead to another phase—salary negotiation.  Here, an employer is less restricted than you may think. You can ask the candidate about their salary history and salary requirements (and confirm this information by asking for W2s, if you choose), although a candidate is not legally required to provide it.

As for benefits like paid time off, a candidate should not assume they are legally entitled to them. For example, no state has passed mandatory paid vacation, so that also remains a point of negotiation. However, several states and cities have passed paid sick leave laws, and some even now include pregnancy or childbirth-related disabilities within their coverage (watch for that to be specified and explained in jurisdictions like California, Connecticut, Oregon, or Seattle and San Francisco). Make sure to put any negotiations in writing before offering the position to the candidate to avoid any future miscommunication.

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