Have you reviewed your employee handbook this year? Employee handbooks are living, breathing documents, which must be updated from time to time to comply with changing laws. Some of the policies our clients have been adding or modifying in the recent past involve:
- Blogging/Social Media – You may wish to add (or update) a blogging/social media policy to your employee handbook. Such a policy would address various issues, including the use of social media during working time, the type of confidential company information an employee may not disclose on his or her Facebook page, and how employees must disclaim their statements on blogs if such statements could appear to be made on behalf of the company. Employers should be aware, however, that certain prohibitions included in such a policy could be deemed to be in violation of the National Labor Relations Act's rules protecting employees' rights to engage in concerted activity. The National Labor Relations Board ("NLRB") has reviewed more than 100 cases involving social media, and the results of those cases are a mixed bag. The NLRB's General Counsel published a summary of some of these recent cases, and provided guidance on how the NLRB has ruled, and will rule, on some of these tricky issues.
- Cellular Phone Use – Does your handbook include a policy on cellular phone use? Several employers now include policies that address issues such as cellular phone use during the workday or while driving on company business.
- Time Worked – Does your policy regarding recording working time reference time worked remotely? If you maintain a handbook policy that addresses how employees are to record, or what is considered, "working time," does it specifically state that logging in from home and responding to e-mails via BlackBerry may be considered "working time" under applicable federal and state wage/hour laws when the time spent on such tasks is more than de minimis?
- FMLA – The Family and Medical Leave Act of 1993 ("FMLA") was amended in 2008-09. Does your policy reflect these changes? For example, does it include the various types of leave available to employees for their family members' service in the military, such as caring for family members who were injured in the line of duty? (This type of leave is available for up to 26 weeks, not 12.) As a result of these amendments, as well as revised regulations interpreting the law, several definitions in the FMLA also changed, including the definition of "serious health condition." Guidance was also provided regarding what rules and restrictions are placed on employers in granting or denying FMLA leave to employees, or whether employees can or must use paid time off prior to taking unpaid leave. You should also confirm that your FMLA policy addresses all applicable state and local family/medical leave laws wherever your company does business.
- GINA – Do all of your applicable handbook policies (and other employment-related documents) reflect the Genetic Information Nondiscrimination Act of 2008 ("GINA")(which generally prohibits discrimination on the basis of genetic information with respect to both health insurance and employment), as well as all applicable state/local anti-discrimination laws?