EMPLOYEE HANDBOOKS Charles C. High, Jr. and Clara B. (C.B.) Burns Kemp Smith LLP, El Paso

Pros and Cons Gives employees a general idea of what to expect Lessens burden on employer of informing employees Assists supervisors and managers in being consistent Reinforces compliance with laws and policies that limit employer liability

Pros and Cons Having a handbook leads to employee expectation that it will be followed Failure to follow becomes suspect in the eyes of a jury Changes can have negative impact on morale

Contents Varies depending on size and manner of doing business Key purpose is to memorialize company’s existing policies Ask yourself: Does this policy provide a new hire with a realistic picture of how things work here?

Contents A handbook should not tell supervisors how to manage employees The focus should be on communicating information, not instructing managers and supervisors

Introduction to Company Can be helpful to new employees Can also give history, mission, company growth, etc. Be careful with language/photos “young and energetic” Photos of founders/officers Can be used against company in discrimination cases

Introduction to Company Avoid absolutes “At XYZ Company all employees are treated with respect” vs. “At XYZ Company our goal is to treat all employees with respect” Allows company to explain to a jury that employee respect is always the company’s goal even when appears otherwise

Disclaimers Are absolutely necessary Not a contract of employment Can be modified, revised or changed at any time Right not to follow depending upon circumstances If any provision inconsistent with state law, will follow state law

EMPLOYMENT STATUS Vast majority of states follow employment at-will so it should be stated Make clear that no one has the authority to alter an employee’s at-will status unless it is in writing and signed by a designated company official

EMPLOYMENT STATUS If have a probationary or orientation period, make clear that completion does not alter at-will status Check state law on disclaimers (In South Carolina it must be in underlined capital letters on first page of document and signed by employee)

Common Policies Promotions Workweek, workday Exempt, non-exempt Overtime Payroll, corrections

More Common Policies Leaves of absence Dating and workplace romance Attendance requirements Workers’ compensation Vacation, PTO, sick leave

Still More Common Policies Workplace violence Business ethics Employee monitoring and privacy issues Dress code Use of email system

Even more…. Open door problem solving Arbitration of disputes Confidentiality Social media

ANTI-HARASSMENT POLICY

ANTI-HARASSMENT POLICY Cover all federal protected categories as well as applicable state requirements Prohibit retaliation Reporting procedure, investigation, and consequences

ACKNOWLEDGEMENT Most states accept electronic signatures But must be sufficient to rebut denial of receipt and acceptance Include: received, understood; not a contract; at-will; agree to read and follow

Employment At Will Disclaimers Policies Under Attack Employment At Will Disclaimers Section 7 rights under NLRA – can’t require employee to waive rights “I agree that the at-will relationship cannot be amended, modified, or altered in any way.”

Accepted language (at least in 2012( Policies Under Attack Accepted language (at least in 2012( “No manager, supervisor or employee has any authority to enter to an agreement for any specified period of time or to make an agreement for employment other than at-will. Only the president of the company has the authority to make any such agreement and then only in writing.”

Confidentiality of Investigations Policies Under Attack Confidentiality of Investigations Blanket rules that prohibit discussions of ongoing investigations violates Section 7 rights to engage in protected concerted activities. Compliant language: “in some circumstances” confidentiality is necessary and disciplinary action may result if there is a failure to maintain confidentiality

Confidentiality of Company Information Policies Under Attack Confidentiality of Company Information Policies that prohibit employee discussion of wages, personnel information or financial information are generally considered overbroad Acceptable policy: prohibit discussion of “private or confidential” information, followed by examples, such as trade secrets, private info of a guest or customer

Policies regarding Communications Policies Under Attack Policies regarding Communications Problem policies: “Making false, vicious, profane or malicious statements” concerning employer or employees “Negative comments” about manager, or requiring employees to represent employer in a “positive or professional manner” “Damage the company, defame any individual or damage any person’s reputation” No-gossip policies

Policies regarding Communications Policies Under Attack Policies regarding Communications Acceptable policies: Prohibiting “abusive and profane language,” “harassment,” verbal mental and physical abuse Prohibiting conduct injurious, offensive, threatening, intimidating, coercing, or interfering with employees or customers (promotes civility and decorum in the workplace)

Policies Under Attack Email Policies Purple Communications – Employees are presumptively permitted to use employer email systems during nonwork time for Section 7 activities if employer gives employees access to its email systems

Policies Under Attack Social Media Policies Unacceptable: “Don’t release confidential guest team member or company information” “When in doubt about whether the information you are considering sharing falls into one of the above categories, DO NOT POST. Check with employer or legal to see if it’s a good idea.”

Policies Under Attack Social Media Policies More unacceptable: Requiring posts to be “completely accurate and not misleading” – overbroad because employees are allowed to criticize employer policies as long as not maliciously false “Communications with co-workers … that would be inappropriate in the workplace are also inappropriate online” – too ambiguous “Think carefully about friending co-workers” – overbroad because discourages communications

Policies Under Attack Social Media Policies More unacceptable: Requirement to report “any unusual or inappropriate internet social media” A policy that prohibited discussion of “legal matters including pending litigation or disputes” A policy that discouraged social media topics that “may be considered objectionable or inflammatory – such as politics or religion”

Policies Under Attack Social Media Policies Saving Clauses – “social media policy to be administered in compliance with applicable laws and regulations (including Section 7)” – insufficient to cure an overbroad policy

Practical Pointers Handbooks aren’t one-size fits all Have handbook periodically reviewed for updates, compliance If maintained electronically and acknowledgments are by electronic signature, make sure you can prove the employee signed

Thank You! EMPLOYEE HANDBOOKS Charles C. High, Jr. and Clara B. (C.B.)Burns Kemp Smith LLP, El Paso