Could your employee handbook stand up to a lawsuit or EEOC claim? Here are six tricky areas that could mean trouble for your company.
Landmine 1: A handbook that’s older than dirt
When was the last time you reviewed your company’s employee handbook? If it’s been longer than a year, then it’s been too long.
Sometimes the laws stay the same, and there is no need to actually make updates from one year to the next. But a critical review of every policy should still be part of the company’s annual plans.
More often, things do change. A court case decision may set a new precedent. Recreational or medicinal drug laws could loosen or toughen up in a state. Fashion trends may usher in a new level of inappropriateness. A new mobile app or social media platform may take over productivity. There are a number of things that can happen in a year; make sure your handbook can keep up with the changes.
Landmine 2: No written acknowledgments
In the eyes of the court, if it’s not in writing, then it didn’t happen.
Nextep’s HR experts have seen unemployment hearings lost because the worksite employer never obtained a signed handbook acknowledgment from the employee and was therefore unable to prove that the employee was knowingly in the wrong. Even if the employee is under the influence of drugs or alcohol on the job, for example, it could be difficult for the employer to win a claim if there’s no signed acknowledgment of a handbook that includes a drug-free workplace policy.
Landmine 3: Playing favorites (or not so favorites)
People are different. They have different life situations, different needs, and different duties at their jobs.
The handbook policy needs to be enforced on a case-by-case basis, and what’s good for one employee may not apply to the next. But there’s a subtle line the employer should not cross; the line where individualized assessment becomes discriminatory behavior.
If one employee must take a post-injury drug screen because they seem less trustworthy, but then the next employee doesn’t take a drug screen because their accident didn’t seem severe, you’ve just crossed the line into discriminatory behavior. Their courses of treatment and return to work plans may differ, but the core rules should be universally applied.
Landmine 4: Micromanaging every move
It can be tricky to know how just much detail to apply to some policies without crossing the line into micromanaging.
A harassment policy, for example, needs to be very specific in the definition of harassment, what to do when it happens, who to report it to, how and when to report it, and additional points of contact if the first one isn’t immediately available. A handbook policy that dictates every moment of the employee’s day, though, is a step too far.
If you feel the need to get too detailed in areas that shouldn’t need it, use it as an opportunity to review your company’s employee lifecycle from the beginning. Make sure that you have the right candidate screening, interview questions, background checks, orientation and training programs, ongoing education, open communication, and management support to ensure that you are hiring the right people for your company and following the best practices to not only avoid legal trouble but help your company thrive.
Landmine 5: Violating the NLRA
There are several areas where your company policies could run afoul of the National Labor Relations Act (NLRA), whether your company is unionized or not.
Every company should avoid these policies in particular:
- Policies against discussing pay. According to the NLRA, employees discussing pay amongst themselves, including disclosure of their own pay rates, is a protected activity and cannot be punishable.
- Policies against complaining. Even if the statement is laced with profanity, employees have NLRA protection when speaking about wages, benefits, or other working conditions, especially those that may compromise worker safety.
- Policies banning all social media. Although we wish employees would not complain about our companies in a public forum such as Facebook or Glassdoor, we can’t prohibit them from doing so. Unless the post is pure slander or giving away confidential trade secrets, an employee’s right to post their opinions online is considered protected concerted activity. Nextep has a carefully crafted social media policy that protects the company as well as the employee’s rights.
Landmine 6: Stomping on civil rights
Just as you don’t want to violate an employee’s rights under NLRA, you also shouldn’t violate the rights they are afforded under the Equal Employment Opportunity Commission (EEOC).
Most companies are familiar with setting nondiscriminatory policies such as equal pay for equal work and the interactive process of determining reasonable accommodations for employees with disabilities, but there are some areas that may unintentionally encroach upon the EEOC.
A hygiene policy, for example, could discriminate against employees who have certain medical conditions, eat strong-smelling food from their nations of origin, or can’t afford to buy new clothes. A dress code that bans hats could violate the rights of employees who wear turbans for religious reasons.
Employee handbooks can be a challenge, but that’s what Nextep’s HR experts are here for! We eat handbooks for breakfast, lunch, and dessert and are happy to add yours to the plate. Contact us to learn more about how we can help you.
