Spring is almost over, but we still have time for some spring cleaning before the season comes to an end. There have been many recent changes to federal and state labor and employment laws, so now is a great time to review your company policies and update those employee handbooks. This Spring Cleaning installment provides you with a quick overview of some, but certainly not all, recent employment law developments that employers should consider when updating their employee handbooks.
Employee Conduct Policies
The National Labor Relations Board (NLRB) continues to heavily scrutinize employee conduct policies in employee handbooks. In particular, employers’ policies on social media, the use of employer email systems, employee codes of conduct, and confidentiality are all being targeted in order to determine whether these policies dissuade or “chill” employees from communicating about their work conditions — a protected concerted activity under the National Labor Relations Act. As such, these policies should be reviewed to determine whether they are overbroad and/or susceptible of being interpreted as chilling employee rights.
The NLRB has recently provided guidance suggesting that at-will disclaimers, which merely restrict the employer’s own representative from entering into employment agreements with employees, are appropriate so long as they do not require employees to refrain from seeking to change their at-will status or agree that their at-will status cannot be changed in any way. Employers should review their at-will disclaimers to ensure that they do not infringe upon employees’ rights to organize or otherwise change the terms and conditions of their employment.
Criminal Background Checks
The U.S. Equal Employment Opportunity Commission (EEOC) has taken an aggressive approach on the use of criminal background checks and is pursuing litigation against various employers whose policies, the EEOC claims, are discriminatory and in violation of federal law. Employers that utilize criminal background reports should review their policy and consider recent EEOC guidance on the subject in order to craft their policies in a way that is likely to withstand scrutiny by the EEOC.
For more information on this topic, see the April 2014 Spring Cleaning Series installment on criminal background checks. (Click here.)
Break Policies for Nursing Mothers
Last year, the U.S. Department of Labor reminded employers that the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require that employers provide reasonable break time for employees to express breast milk for their nursing children and provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.
To the extent that employers do not have specific handbook policies addressing this issue, it may be time to consider adding such a policy. At a minimum, employers may want to review their existing break policies to ensure that such policies do not run afoul of the FLSA.
Description of Benefit Policies
Employers that describe benefits in employee handbooks run the risk that the benefit description may conflict with the description in the plan document or the Summary Plan Description. When such a conflict arises, courts generally interpret the contradictory provisions in the manner most beneficial to employees. Ambiguous language in a handbook may also have the unintended consequence of creating an ERISA plan.
Employers should revisit benefit policy statements in employee handbooks and consult with counsel to ensure that these descriptions and the benefit plan documents do not conflict.
Numerous states and municipalities have enacted legislation in the past year, regarding a number of labor and employment-related issues that could impact current handbook policies. Developments in state and local law have included, but by no means have been limited to, such topics as:
- the use of employee background reports for employment purposes;
- drug and alcohol testing policies, including application to medical marijuana;
- equal opportunity policies prohibiting discrimination based on sexual orientation, gender identity, or other characteristics;
- employer access to applicant/employee social media accounts such as Facebook and Twitter;
- breaks and meal periods;
- minimum wage and overtime;
- allowable payroll deductions;
- leave policies pertaining to jury service, voting, military service, crime/domestic violence proceedings, etc.; and
- the verification of an employee’s work authorization.