HR Tip: Have you updated these policies in your 2019 employee handbook?

Keeping the employee handbook updated with the latest laws and company policies is a challenging, but necessary, task. 2018 was a busy year particularly at the state and local levels as new and amended employment-related laws took effect in 27 states. Here are 20 areas that may need attention. Employers are encouraged to discuss with knowledgeable counsel the local, state, and/or federal laws that will apply to the employer’s workplace in 2019:

  1. Sexual harassment
  2. Discrimination protection based on gender identity
  3. Retaliation procedures
  4. Reasonable accommodations for women who are pregnant or breast feeding
  5. Update to leave laws (supplement may be necessary for multi-state employers)
  6. Medical and recreational marijuana
  7. Drug use
  8. Equal pay and wage discrimination
  9. Use of cellphone while driving
  10. Independent contractors
  11. E-cigarettes and other tobacco substitutes
  12. Weapons in the workplace
  13. Changes to employee benefits
  14. Remote work policies
  15. Data privacy
  16. Social media
  17. Workplace conduct
  18. Arbitration and At-will acknowledgement
  19. Minimum wage
  20. Problem areas requiring a clearer policy or different strategy

Updating the handbook is also an opportunity to train managers and reinforce policies with employees. Employers should also obtain acknowledgments of receipt each time they update their handbooks.

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HR Tip: NLRB overturns Obama-era rulings related to joint employment and handbooks

A newly appointed Republican majority on the National Labor Relations Board (NLRB) returned to the standard that companies must have “immediate and direct” control over a worker to be considered a joint employer. Under the Obama rule indirect control by one organization over another was enough to establish a joint employer relationship (Browning-Ferris decision). Applying the reinstated pre-Browning Ferris standard, the Board agreed with an administrative law judge’s determination that Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were joint employers and, therefore, jointly and severally liable for the unlawful discharges of seven striking employees.

In the employee handbook case, the board overruled a prior decision placing limits on employer handbook policies that could be “reasonably construed” by workers to limit their right to engage in protected concerted activity-so-called Section 7 of the National Labor Relations Act (NLRA) rights.

The underlying case in the ruling involved a policy by The Boeing Company that prohibited employees from taking photos on company property “without a valid business need and an approved camera permit.” The company argued this was necessary to protect sensitive information and the NLRB found that the no-camera rule was lawfully maintained.

In this decision, the board replaced the “reasonably construe” standard with a new balancing test that will consider the following factors with regard to a “facially neutral” handbook policy:

  • The nature and extent of the potential impact on NLRA rights.
  • The employer’s legitimate justifications associated with the rule.

The board outlined three categories of employment policies, rules and handbook provisions:

  • “Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility. Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.”
  • “Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
  • “Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another.”

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com