Download Avoiding 50 Shades of Gray in Your Handbooks:Making Sure Your

AVOIDING 50 SHADES OF GRAY IN YOUR HANDBOOK:
MAKING SURE YOUR POLICIES ARE BLACK AND WHITE
Aaron A. Clark & Ruth A. Horvatich
CONCERNS ABOUT HANDBOOKS
• Creating a contract of employment and
trumping the “at-will” employment rule
• Policies can take away employer discretion
• Policies may go too far and infringe upon an
employee’s legal rights (including rights under
§ 7 of the NLRA)
• Handbook can be used as an exhibit in a legal
action against employer
WHY YOU NEED A HANDBOOK
• Sets forth employer’s expectations and
terms and conditions of employment
• Help ensure consistent and fair
treatment of employees
• Handbook can be used as an exhibit to
defend employer
• Advise and direct employees how to
exercise their legal rights
CHECKLISTS FOR
HANDBOOK POLICIES
DISCLAIMER/ACKNOWLEDGEMENT
 Handbook does not create a contract for
employment or alter the “at-will” relationship
 Company has right, without notice, to unilaterally
revise, rescind or modify provisions and benefits
 Acknowledgement Form signed by employee



Confirming receipt of the Handbook;
Employee read it, understands it and agrees to
comply with its provisions; and
Acknowledges employment on an “at-will” basis
EEO DISCRIMINATION/
HARASSMENT POLICIES
What is an effective policy?
 Clear explanation of the prohibited conduct
 Protects from retaliation
 Complaint procedure, who to contact and prompt
reporting
 Assures confidentiality of complaint to the extent possible
 Provides for prompt, thorough and impartial investigation
 ZERO tolerance and Company will take immediate and
appropriate corrective action if discrimination or
harassment occurs
GENETIC INFORMATION NONDISCRIMINATION ACT (GINA)
 Non-discrimination and harassment policy
should include “genetic information” as a
protected class
 Requests for employee medical information
should include GINA safe harbor language
 Clarify not requesting any genetic information in
connection with request
 Define “genetic information” under GINA
ADA POLICY
 Applies to “qualified individuals with disabilities”
 Company will provide reasonable accommodations to
disabled employees to perform the essential functions
of the job, unless it creates an undue burden
 Employee is responsible for requesting a reasonable
accommodation in writing or on a form provided by
the Company
 Who to contact regarding accommodation request
 Company has right to request medical information
concerning disability and need for an accommodation
ATTENDANCE POLICY
 Requirement to call in to report absences,
including who to contact, how far in advance of
work shift and the reason for the absence
 How attendance points are assessed and
discipline procedure
 Excludes absences protected under leave
policies, FMLA and ADA
 No call-no show means job abandonment (i.e.,
3-day no call, no show)
 Circumstances when fitness for duty will be
required
FAMILY AND MEDICAL LEAVE POLICY
(FMLA)
 Basic rights
Define eligible employees
Type of leave protected under the FMLA
(including military and intermittent)
Right to be reinstated to equivalent position
with same pay, benefits and other employment
terms
 How leave is calculated (i.e., on a rolling
12-month basis)
 Whether paid leave must be used during
FMLA leave
FAMILY AND MEDICAL LEAVE POLICY
(FMLA)
 How to request leave and timing
 Must complete a written request for FMLA
 Must disclose the need for an FMLA-qualifying leave
and the anticipated timing and duration of the leave
 Calling in “sick” without providing the reason for leave,
will not be sufficient – have to follow call-in procedure
 Medical certification requirement
 Right to request second or third opinions
 Duty to schedule treatment so as not to unduly
disrupt operations
 Return to work certification
LACTATION BREAK POLICY
 Provide reasonable break periods to express breast
milk for an employee’s infant up to one year of age
 Duty to notify supervisor regarding frequency, timing
and duration of breaks
 Designated lactation room available
 Whether breaks are unpaid and whether employee
is required to clock out
Note: If taken during normal paid break time, employee is
entitled to paid break
PTO AND VACATION
Who is eligible
How benefit will accrue
Procedure for requesting leave
Are benefits capped
Payment upon employment separation
WAGE AND HOUR POLICIES
Define work day and work week
Meal and rest periods (unpaid if longer
than 20 minutes)
Define employee classifications (i.e., fulltime, part-time, probationary or
temporary)
Overtime including unauthorized
overtime
STANDARDS OF CONDUCT
• Falsifying records
• Theft and fraudulent activity
• Removing company property
without permission
• Excessive absenteeism
• Being under the influence of
intoxicating substances
• Physical altercations
• Abusive language,
boisterous activity
• Insubordination
• Violating health and safety
rules
• Violating discrimination and
harassment policies
• Possessing dangerous
materials, explosives or
firearms
• Engaging in criminal activity
• Violations of company policy
• Disclosing confidential
information, trade secrets or
proprietary information
• Inefficiency or incompetence
or negligence in job
performance
DISCIPLINE PROCEDURE
 Whether company follows progressive discipline
(verbal reprimand, written reprimand, final
warning/suspension, termination)
 Company reserves the right to immediately terminate
the employment and bypass disciplinary measures –
depends on the nature and seriousness of the
infraction
 Violating standards of conduct can result in immediate
termination (list is not exhaustive)
 Company may suspend pending investigation with or
without pay
CELL PHONES AND
ELECTRONIC DEVICES
 Whether employees can use their cell phones for
personal calls or texting during work time (or define
permissible areas)
 If job duties include regular and occasional driving,
prohibition on using cell phones for calls or texts while
driving, unless using a hands-free device
 Prohibition on using cameras or audio recorders on
device without express permission in designated areas
to protect privacy or trade secrets
SUBSTANCE ABUSE POLICY
 Commitment to providing a safe, healthy and productive
work environment by maintaining a drug and alcoholfree workplace
 Identify the prohibited conduct
 Use, abuse or being under the influence of alcohol,
illegal drugs or other impairing substances while on duty
or on the company’s premises
 Possession, sale, purchase, transfer of any illegal or
unauthorized drug or drug-related paraphernalia
 Illegal use or abuse of prescription drugs except
medication legally prescribed to the extent it does not
impair the employee’s job performance or the safety and
health of other workers
SUBSTANCE ABUSE POLICY
 Duty to inform supervisor or management if medication
may impair job performance, safety or health in the
workplace
 Consequences for violating policy including disciplinary
action up to and including immediate termination
 Right to inspect employees as well as surroundings for
possession of substances and materials in violation of
this policy
 Type of testing that can be conducted including preemployment, random, and reasonable suspicion
Note: State law may dictate policy requirements
SOLICITATION AND DISTRIBUTION POLICY
 Define restriction
 Soliciting employees and distributing literature during work
time
 Distributing literature any time in working areas
 Define solicitation
 Offering anything for sale, asking for donations, collecting
funds or pledges, promoting or encouraging participation
and support for any organization, activity or event,
distributing or delivering membership materials or
applications for any organization
 Define distribution and prohibited means of
distribution
 Define working time and working areas
 Disclaimer for exercising § 7 rights under NLRA
EMPLOYEE BENEFITS
 Identify who is eligible
 Reference to plan documents and who to
contact
 Example: Regular full-time employees are
eligible for health insurance after 60 days of
continuous employment. Information
regarding these benefits including eligibility,
specific types of coverage and benefit
payments can be found in the plan documents
obtained from the Human Resources Manager
HANDLED THROUGH AGREEMENT
AND NOT IN THE HANDBOOK
Not a contract means not a contract
• Confidentiality, trade secrets and
proprietary information
• Inventions and assignment of rights
• Non-competes and non-solicitation
• Arbitration
THE NLRB & EMPLOYEE
POLICIES
RICHARD GRIFFIN
NLRB GENERAL COUNSEL
APPOINTED BY PRESIDENT
OBAMA IN 2013
TERM ENDS
NOVEMBER 4, 2017
THE BOARD
Philip Miscimarra (R)
Chairman of the NLRB (since 4/24/17)
Term expires 12/16/17
Mark Gaston Pearce (D)
Term expires 8/27/18
Lauren McFerran (D)
Term expires 12/16/19
SECTION 7 RIGHTS &
CONCERTED PROTECTED
ACTIVITIES
SECTION 7 OF THE NATIONAL
LABOR RELATIONS ACT
Protects employees’ rights to engage,
or refrain from engaging, in:
• Self organizing.
• Forming, joining or assisting labor
organizations.
• Engaging in other concerted activities for
the purposes of:
– Collective bargaining; or
– Other mutual aid and protection.
CONCERTED PROTECTED
ACTIVITY
Test:
• Activity
– With or on authority of other employees
– NOT – solely by and on behalf of
employee him or herself
• For mutual aid or protection of
employees
EXPANSION OF “CONCERTED
PROTECTED ACTIVITY”
Union and Non-union Employers
• Employer Rules and Policies
• Social Media
• Email
SECTION 7 & WORK RULES
If no explicit limitation, to be unlawful the
NLRB must show one of the following
• Employees would reasonably understand the
rule to prohibit Section 7 activity
• The employer promulgated the rule in
response to union activity
• The rule has been applied to restrict the
exercise of Section 7 rights
SECTION 7 & WORK RULES
• A restriction will be unlawful if:
– rules are ambiguous as to application to
Section 7 activity, and
– contain no limiting language
– or context
– that would clarify that the rule does not
restrict Section 7 rights
CONFIDENTIALITY WORK RULES
CONFIDENTIALITY WORK RULES
• Employees have Section 7 right to
discuss wages, hours, and other terms
and conditions of employment with
fellow employees, as well as with
nonemployees
CONFIDENTIALITY WORK RULES
Do not discuss “customer or employee
information” outside of work, including
“phone numbers [and] addresses.”
CONFIDENTIALITY WORK RULES
“Never publish or disclose [the
Employer’s] or another’s confidential or
other proprietary information. Never
publish or report on conversations that
are meant to be private or internal to [the
Employer].”
CONFIDENTIALITY WORK RULES
 Prohibiting employees from “disclosing
details about the Employer.”
 “Sharing of [overheard conversations at
the work site] with your co-workers, the
public, or anyone outside of your
immediate work group is strictly
prohibited.”
 “If something is not public information,
you must not share it.”
CONFIDENTIALITY WORK RULES
Confidential Information is: “All information in
which its loss, undue use or unauthorized
disclosure could adversely affect the [Employer’s]
interests, image and reputation or compromise
personal and private information of its members.”
CONFIDENTIALITY WORK RULES
No unauthorized disclosure of “business
‘secrets’ or other confidential information.”
CONFIDENTIALITY WORK RULES
“Misuse or unauthorized disclosure of
confidential information not otherwise
available to persons or firms outside
[Employer] is cause for disciplinary action,
including termination.”
CONFIDENTIALITY WORK RULES
“Do not disclose confidential financial data,
or other non-public proprietary company
information. Do not share confidential
information regarding business partners,
vendors or customers.”
CONFIDENTIALITY WORK RULES
Prohibition on disclosure of all “information
acquired in the course of one’s work.”
CONTEXT MATTERS!
CONDUCT WORK RULES
PROTECTED CONCERTED
CRITICISM
Employees have the right under Section 7
to criticize or protest their employer’s labor
policies or treatment of employees.
PROTECTED CONCERTED
CRITICISM
NLRB v. Pier Sixty, LLC,
2017 WL 1445028 (2d Cir. Apr. 21, 2017)
Bob is such a NASTY MOTHER F*****
don’t know how to talk to people! ! ! ! ! !
F*** his mother and his entire f******
family! ! ! ! What a LOSER! ! ! ! Vote YES
for the UNION! ! ! ! ! ! !
CONDUCT WORK RULES
“Be respectful of others and the Company.”
CONDUCT WORK RULES
“[B]e respectful to the company, other
employees, customers, partners, and
competitors.”
CONDUCT WORK RULES
Do “not make fun of, denigrate, or defame
your co-workers, customers, franchisees,
suppliers, the Company, or our
competitors.”
CONDUCT WORK RULES
No “[d]efamatory, libelous, slanderous or
discriminatory comments about [the
Company], its customers and/or
competitors, its employees or
management.”
CONDUCT WORK RULES
“Disrespectful conduct or insubordination,
including, but not limited to, refusing to
follow orders from a supervisor or a
designated representative.”
CONDUCT WORK RULES
“Refrain from any action that would harm
persons or property or cause damage to the
Company’s business or reputation.”
CONDUCT WORK RULES
Prohibiting the “inability or unwillingness to
work harmoniously with other employees.”
CONDUCT WORK RULES
Do not make “insulting, embarrassing,
hurtful or abusive comments about other
company employees online,” and “avoid the
use of offensive, derogatory, or prejudicial
comments.”
CONDUCT WORK RULES
No “rudeness or unprofessional behavior
toward a customer, or anyone in contact
with” the company.
CONDUCT WORK RULES
“Each employee is expected to work in a
cooperative manner with
management/supervision, coworkers,
customers and vendors.”
CONDUCT WORK RULES
“Being insubordinate, threatening,
intimidating, disrespectful or assaulting a
manager/supervisor, coworker, customer or
vendor will result in” discipline.
CONDUCT WORK RULES
No “use of racial slurs, derogatory
comments, or insults.”
CONDUCT WORK RULES
Lawful Rule
Unlawful Rule
No abusive or threatening language to
anyone on Company premises.
No loud, abusive, or foul language.
No verbal abuse, abusive or profane
language, or harassment.
No false, vicious, profane or malicious
statements toward or concerning the
Hotel or any of its employees.
No conduct which is injurious, offensive, No inability or unwillingness to work
threatening, intimidating, coercing, or
harmoniously with other employees.
interfering with other employees.
Prohibiting conduct that does not
No negative energy or attitudes.
support the Hotel’s goals and objectives.
No negative conversations about
associates and/or managers.
EMPLOYEE – THIRD PARTY
CONDUCT
Under Section 7 employees have the right
to communicate with the news media,
government agencies, and other third
parties about wages, benefits, and other
terms and conditions of employment.
EMPLOYEE – THIRD PARTY
CONDUCT
“[A]ssociates are not authorized to
answer questions from the news media
… . When approached for information,
you should refer the person to [the
Employer’s] Media Relations
Department.”
“[A]ll inquiries from the media must be
referred to the Director of Operations in
the corporate office, no exceptions.”
EMPLOYEE – THIRD PARTY
CONDUCT
“If you are contacted by any government
agency you should contact the Law
Department immediately for assistance.”
EMPLOYEE – THIRD PARTY
CONDUCT
“The company strives to anticipate and manage
crisis situations in order to reduce disruption to
our employees and to maintain our reputation as
a high quality company. To best serve these
objectives, the company will respond to the news
media in a timely and professional manner only
through the designated spokespersons.”
PHOTOGRAPH, RECORDINGS, OR
PERSONAL ELECTRONIC DEVICES
Employees have protected Section 7 right to
photograph and make recordings in furtherance
of their protected concerted activity.
PHOTOGRAPH, RECORDINGS, OR
PERSONAL ELECTRONIC DEVICES
“Taking unauthorized pictures or video on
company property” is prohibited.
PHOTOGRAPH, RECORDINGS, OR
PERSONAL ELECTRONIC DEVICES
A total ban on the use or possession of
personal electronic equipment on Employer
property.
PHOTOGRAPH, RECORDINGS, OR
PERSONAL ELECTRONIC DEVICES
Prohibition from wearing cell phones,
making personal calls or viewing or sending
texts “while on duty.”
PHOTOGRAPH, RECORDINGS, OR
PERSONAL ELECTRONIC DEVICES
“The use of cameras for recording images
of patients and/or hospital equipment,
property, or facilities is prohibited.”
RESTRICTIONS FROM LEAVING WORK
Rules that regulate
when employees can
leave work are
unlawful if employees
reasonably would read
them to forbid
protected strike
actions and walkouts.
RESTRICTIONS FROM LEAVING WORK
“Failure to report to your scheduled shift for
more than three consecutive days without
prior authorization or ‘walking off the job’
during a scheduled shift” is prohibited.
RESTRICTIONS FROM LEAVING WORK
“Leaving Company property
without permission may result in
discharge.”
“Entering or leaving Company
property without permission may
result in discharge.”
RESTRICTIONS FROM LEAVING WORK
“Walking off shift, failing to report for a
scheduled shift and leaving early without
supervisor permission are also grounds for
immediate termination.”
COMPANY EMAIL
Employees are presumed
to be able to use Company
email for Section 7protected communications
during non-working time.
Employer can rebut
presumption by showing
“special circumstances”
but it is unclear what would
qualify.
COMPANY EMAIL
Do not send “unwanted, offensive, or
inappropriate” emails.
COMPANY EMAIL
“Material that is fraudulent, harassing,
embarrassing, sexually explicit, profane,
obscene, intimidating, defamatory, or
otherwise unlawful or inappropriate may not
be sent by e-mail.”
COMPANY EMAIL
“[I]t is our policy to prohibit the distribution of
literature in work areas and to prohibit solicitation
during employees’ working time. “Working time”
is the time an employee is engaged, or should be
engaged, in performing his/her work tasks for
Wendy’s. These guidelines also apply to
solicitation and/or distribution by electronic
means.”
SOCIAL MEDIA
An overbroad policy:
 Prohibits posting of “confidential” information with no
definitions
 Forbids “rude, offensive, demeaning or abusive”
comments or activities that would “damage” the
company
 Requires prior employer approval before posting
 Restricts employee from posting photos, video or
comments about the company
 Requires posts to be “accurate” or “not misleading”
 Prohibits the use of company name or trademarks on
social media sites
SOCIAL MEDIA
A lawful policy:
 Advises employees of lawful restrictions
 Uses specific definitions or examples of
prohibited conduct – context
 Refers to other company policies
(harassment, confidentiality, etc.)
 Avoids general threats of discipline for
engaging in unauthorized social media
activities
 Advises employees of monitoring
 Has a disclaimer on NLRA protected
activity
NLRB REMEDIES
1. NLRA applies to
employees only
2. Posting a Notice
3. Revocation or
alteration or rule
4. Possibility of back
pay and
reinstatement
THANK YOU
Aaron Clark | Ruth Horvatich
McGrath North Mullin & Kratz, PC LLO
3700 First National Tower
1601 Dodge Street
Omaha, NE 68102
402-341-3070
[email protected]
[email protected]
©McGrath North Mullin & Kratz, PC LLO2015