An employee handbook needs to be a living document that is continually
reviewed and updated to reflect the rapidly changing state, federal and local
laws, as well as changes that new technology brings to the way workplaces
operate. There are many reasons you may
wish to revise your handbooks if you have not done so within the past few
years, including new laws that require specific handbook provisions, new or
revised clauses that may be advisable due to new laws or agency actions, or increased
agency scrutiny of certain types of clauses.
The following is a discussion of several types of clauses that
should be reviewed for one or more of these reasons.
1. Accommodation policy that includes making
accommodations for pregnant employees
- As part of the Women’s Economic Security Act (WESA) Minnesota passed a law that specifically requires providing reasonable accommodations for eligible pregnant workers, even beyond those that may be required under the ADA. Such accommodations may include providing additional break time, seating, changes to facilities, equipment or furniture, providing a leave of absence even after 12 weeks of FMLA leave, light duty, acquiring/modifying equipment or devices, job restructuring, part-time or modified work schedules, or reassignment to a vacant position.
- Additionally, employers are required to provide reasonable break time and a private place to express breast milk at work.
- In connection with these policy changes, managers should be trained on these accommodation requirements so they don’t illegally refuse to provide accommodations.
2. Make sure FMLA policies do not exclude
same-sex spouses in the definition of a spouse
- Under the Supreme Court’s rulings, same-sex spouses are entitled to the same legal protections as opposite-sex spouses, including FMLA leave to care for a spouse with a serious health condition, etc.
3. Medical marijuana
- Minnesota employers may not discriminate against or penalize an employee or applicant based on the person’s status as a legal medical marijuana user or for a legal medical marijuana user’s positive drug test for medical marijuana, unless the individual used, possessed, or was impaired by medical marijuana on the premises of the place of employment or during the hours of employment.
4. The NLRB’s scrutiny of policies
The National Labor Relations
Board (NLRB) in particular has taken a special interest in handbook provisions
over the past several years. The NLRB
invalidates policies that explicitly prohibit employees from engaging in
protected activities under Section 7 of the National Labor Relations Act
(NLRA); i.e., “concerted activity” for the purpose of collective bargaining or
other mutual aid or protection. In other
words, if employees work together to try to address or complain about their
wages, hours, or any other terms and conditions of employment, that activity
will generally be legally protected as concerted activity. In addition, even if a policy does not
explicitly prohibit this activity, today’s NLRB will still find it to be
unlawful if:
- Employees would in it its opinion “reasonably construe the rule to prohibit concerted activity;
- The rule was enacted in response to concerted activity; or
- The rule was actually applied to restrict concerted activity.
Policies
that have come under fire for these reasons include confidentiality policies;
policies regarding employee conduct toward the company and supervisors;
policies regarding employee conduct towards co-workers; policies regarding
third party communications; policies restricting use of company logos,
copyrights, and trademarks; policies restricting photography and recording;
policies restricting employees from leaving work; conflict of interest rules;
and social media policies.
5. Wage disclosure protection
As part of the WESA, Minnesota passed a new law that prohibits
employers from:
- Requiring nondisclosure by an employee of his or her wages as a condition of employment;
- Requiring an employee to sign a waiver or other document which purports to deny an employee the right to disclose the employee’s wages; or
- Taking any adverse employment action against an employee for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily.
Employers are required to include in their handbooks a clause
laying out employees’ rights and remedies under this law.
6. No fault attendance
policies
- Certain laws, such as the FMLA and the ADA can provide legal protection for certain employee absences, so no fault attendance policies that penalize employees after a certain number of absences, no matter what the reason, may need to be modified to allow for exceptions for legally-protected absences.
If your business has not
updated its handbook within the past few years, it should be a top priority for
2016. For a free quote to update your
handbook, contact Wessels Sherman attorneys in our Minnesota office at (952)
746-1700 or email jasherman@wesselssherman.com.
