Employee Handbooks: What’s In, What’s Out? March 2, 2010 Megan L. Anderson

2 Create or Periodically Update a Customized Handbook Factors influencing Handbook contents: –Employer size –Nature of business and job positions –Public vs. private sector employer –Union vs. non-union –Affirmative Action employer or not –Locations / Unique Local Laws –Changes in the law, best practices, or the particular business

3 What’s “In”: Contract Avoidance A Prominent Contract Disclaimer: –Narrow to Broad Options: Disclaim all contractual obligations or modification of at-will employment –Reserve the right to amend and interpret policies –Supersede earlier written or oral policies and/or practices Obtain and Retain a Handbook Receipt from each Employee: –Acknowledge receipt –Agreement to abide by policies –Acknowledgement of at-will employment and contract disclaimer

4 What’s “In”: Contract Avoidance Identify desired conduct of employees, rather than promised conduct of company or management Say what you mean and mean what you say: –Only make promises that company intends to and can keep Use language that gives employer flexibility and discretion Avoid and/or very carefully draft policies that may suggest contract rights or alter at-will employment Avoid ambiguity, gaps, and conflicts in handbook policies

5 What’s “In”: Updated Anti-Discrimination Policies EEO/Anti-Discrimination Policy: –New federal Genetic Information Nondiscrimination Act (GINA) added genetic information to legally protected classes Disability Accommodations Policy (for employers with 15+ employees): –Americans with Disabilities Act Amended –New regulations are anticipated in 2010 Anti-Harassment Policy: –Cover all protected classes and content needed for legal defenses

6 What’s “In”: Updated FMLA Policy Family & Medical Leave Act Policy: –A written policy is legally required for employers with 50+ employees –Update policy to address recent amendments to FMLA and new regulations New military-related entitlements for exigency or caregiver leave Extensive changes in the regulations

7 What’s “In”: MN Personnel File Policy MN Personnel Record Review and Access Act: –Effective January 1, 2008 –Applies to companies with at least 21 employees –Requires written notice to newly hired employees of “Rights and Remedies” under Act

8 What’s “In”: Vacation/Sick/PTO Policies 2007 Minnesota Supreme Court Decision Held that Employer’s Policy controls what earned Maintain a Clear, Written Policy in or Separate from the Handbook and address: –Use it or lose it/Roll-overs/Caps –Restrictions on use (e.g., timely requests, seasonal restrictions, etc.) –Payout at termination or not

9 What’s “In”: Other Leave Policies Legally Required Leaves (depending on employer size): –MN Parental Leave –Sick/Injured Child Care Leave –School Activities Leave –Jury/Witness Duty –Time Off to Vote –Military Leave –Bone Marrow Donation –“Reasonable Accommodation” Disability Leave Paid Holidays Bereavement Medical and/or Personal Leave

10 What’s “In”: Wage and Hour Policies Employee Classifications and Policies for Non-Exempt Employees: –Work week and working hours –Breaks and meal periods –Timekeeping and overtime Safe Harbor Policy for Exempt Employees: –Allows company opportunity to correct improper salary deductions that could affect exempt employee status

11 What’s “In”: Technology and Online Social Networking Policies Company Property and Technology Policies: –Use of Employer Property and Workspaces –Use of Company Provided Technology Voic , , Internet/Web, PDA’s, and Other Company’s Ability to Search/Monitor Social Networking Policy: –Facebook, Myspace, Twitter, Youtube, Blogs, etc. –Policy should balance employer’s interests with employees’ protected activities and possible privacy rights

12 What’s “In”: Litigation-Driven Policies Whistleblowing Policy: –To address rise in retaliation claims Document/Data Retention and Destruction: –To address legal recordkeeping requirements –To address e-discovery requirements in litigation –Might have longer policy outside handbook with a cross-reference in handbook

13 What’s “In”: Employee Expectations  Attendance/Tardiness/No-Call, No-Show  Weapons/Violence  Drug, Alcohol, Smoke Free Workplace  Conflicts of Interest  Confidential Information  Intellectual Property  Safety/Work-Related Injuries Employment of Relatives/Nepotism Supervisory Romantic Relationships Telecommuting

14 What’s “Out”: Things to Separate from the Handbook Some Acknowledgements Must be Separate from the Handbook: –FCRA/Background Check Authorization –Alcohol and/or Drug Testing Policy and Authorization Key Contractual Commitments Should be Separate: –Confidential/Trade Secret Information –Noncompete and/or Nonsolicitation Obligations –Invention Assignment –Arbitration

15 What’s “Out”: Things to Consider Omitting Entirely Be careful of policies that could alter at- will employment or create contracts: –Probationary Policies –Discipline or Termination Policies –Grievance Policies –Strict Attendance Policies Regulation of non-work behavior: –MN Lawful Consumable Products Law –Privacy Considerations

16 What Could Be In or Out: Labor Law Considerations Policies that Implicate Federal Labor Law Rights: –Use of Company System or other Technology –Confidentiality, e.g., wages –Mandatory Arbitration –Fraternization on and off the job –Solicitation and Distribution –Anti-Union Statements

17 Questions?

18 Speaker Contact Information: Megan Anderson (612)