Hot Topics in Employee Handbooks

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Transcript

Thomson Reuters: Down the Hall with Practical Law

Hot Topics in Employee Handbooks

10/06/2016

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Intro: Welcome to Thomson Reuters: Down the Hall with Practical Law, the show that provides practical insights and expert know-how in trending legal issues. No legalese, just expertise. With you host Renee Karibi-Whyte.

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Renee Karibi-Whyte: Hello and welcome to Thomson Reuters: Down the Hall with Practical Law, the show that provides practical legal know-how that makes lawyers’ lives easier. I am your host Renee Karibi-Whyte and today’s guest is Kate Bally, Director of the Practical Law Labor & Employment Service. Welcome Kate.

Kate Bally: Thank you so much Renee. It’s a pleasure to be here.

Renee Karibi-Whyte: Today we are going to talk about Hot Topics in Employee Handbooks, but first I want to hear a little bit about your background, how did you end up at Practical Law?

Kate Bally: Yes, thanks for asking Renee. I started my legal practice as a clerk at the federal district level in Connecticut and went from there to a firm called Day Pitney, and from there to a firm called Littler Mendelson, which is a very large employment law boutique, sort of a misnomer to call it a boutique, it’s so big. And then from there joined Practical Law in 2009 and have really enjoyed being here. It’s great to be part of this company.

Renee Karibi-Whyte: And what does your group do at Practical Law?

Kate Bally: We write about labor and employment law for labor and employment lawyers and in-house counsel and other attorneys that want to get up to speed on labor and employment issues.

Renee Karibi-Whyte: What are some of the topics that you specialize in that you have a lot of coverage on?

Kate Bally: In the area of labor and employment, some of our biggest topics are wage and hour, discrimination, we have specialists in immigration, traditional labor, but we cover really the gamut of all labor and employment issues.

Renee Karibi-Whyte: Now, I know that a lot of the labor and employment issues end up getting very, very heavily litigated, particularly in the corporate context, and to avoid that most companies have policies in place, at least companies of any size. Typically those policies are encapsulated in the handbook. But what about companies that don’t have a handbook, is there really any danger to not having a handbook?

Kate Bally: Good question. Yes, absolutely. Particularly in the area of discrimination and wage and hour, it’s very easy to find yourself on the hook for claims and for your employees to come along and say, I didn’t know the rules, I didn’t understand my obligations. And for you to say, look, here are my expectations of you as an employee of this company is a really useful tool in everyday management of the workforce, but also if you need to present a legal defense to say, look, you were on notice of the rules, you were on notice of the law as it applies to you. So it’s very important.

Renee Karibi-Whyte: So are there different industries where it’s even more important to have those rules in place and have that formal handbook?

Kate Bally: Generally, without a regard to industry you are on the hook for all kinds of litigation issues, so it’s important across industries. I would say that specifically for industries where you are working in machinery or more dangerous environments, health and safety policies are more important, but by and large with respect to things like discrimination, harassment, retaliation, those policies are uniformly important.

Renee Karibi-Whyte: And do the rules that are included in the handbook policy change considerably. You mentioned manufacturing it sounded like, so there’s a lot of OSHA considerations, would you have a bigger OSHA section, for example?

Kate Bally: I would say that uniformity across your company is ideal, if you can do that, but of course you have to be aware of the practical situation. You may have employees who need to adhere to different rules, but for the benefit of consistency across the company and keeping morale up, you don’t want people to get the sense that some are treated better than others, that can actually pose a litigation risk in some instances. So uniformity is best, if you can do that.

Renee Karibi-Whyte: Are there types of employee challenges that will not be prevented even if you have the best possible handbook?

Kate Bally: Oh, certainly, handbooks can only take you so far, but they could certainly help you, especially in defense of things like harassment claims, that’s the kind of thing where really a handbook can come in handy.

Renee Karibi-Whyte: For the companies that do have a handbook, is there ever any danger to actually having one, like is there any benefit at all to not having one and not formalizing those policies?

Kate Bally: There definitely can be. One of the biggest dangers is not following your own policies and procedures. There is nothing more appealing to a skeptical jury than an employer who didn’t follow their own policies.

In addition, if you are overreaching and you are really disobeying the law in your policies. For example, you have got it wrong on whether unused leave can be carried over year over year, that can really get you in trouble as well.

Renee Karibi-Whyte: So it sounds like it’s really important to not only have policies, but get them right and then apply them consistently throughout.

Kate Bally: That’s exactly right, yes.

Renee Karibi-Whyte: Okay. So for companies that have offices around the country, for example a large retail organization or a large manufacturer or corporate conglomerates, how do they manage the different rules and requirements across various states?

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Kate Bally: It can be a real challenge. State and local law varies dramatically across jurisdictions. Things like Paid Leave Law, which are new to the legal scene, can really vary dramatically and getting that right can be quite a challenge for employers. Tools like Practical Law and others can really help with that kind of thing.

Renee Karibi-Whyte: Now, some people might think that it would be easy to just kind of take the lowest standard, is that actually feasible to do?

Kate Bally: I think that would be quite challenging, especially when you have got California in the mix and California requires so much of employers, certainly that’s an option, a conservative option, but I think that might be difficult to manage for some employers.

Renee Karibi-Whyte: And it may enhance or affect their profitability and other considerations it sounds like as well.

Kate Bally: That’s true.

Renee Karibi-Whyte: Okay. Now, the labor and employment field is extremely active generally and there are a lot of burgeoning issues. Can you talk about some of those issues and how they affect employment policies?

Kate Bally: Sure. The five big ones that come to mind for me are LGBT issues, accommodation, wage and hour, confidentiality, and state nuances.

Renee Karibi-Whyte: So for LGBT, for example, we hear about schools protesting because certain people want to use certain bathrooms and some retail establishments having multiple bathrooms and it causing a big political scene. How does that impact the corporate world?

Kate Bally: Yeah, great question. There has definitely been some backlash with respect to these issues. For example, in Oxford, Alabama there is a new law restricting bathroom access to only folks within their biological gender, and I think we are going to see a lot more legislation and litigation over that issue.

Renee Karibi-Whyte: How can that actually be enforced? I mean, I may not know that yet, but are they going to do under the dress checks or — I mean, how are they actually able to enforce that?

Kate Bally: Well, that is a good question, and I think we are far too early in the process to know the answer.

Renee Karibi-Whyte: So on accommodation, what’s going on with that?

Kate Bally: Yeah, so accommodation really can be broken down into a couple of subsets. We are talking about religion, disability and also pregnancy. There are a lot of cases now that are important for employers to understand as they evaluate their accommodation obligations.

With respect to religion, the Abercrombie case, which is a relatively recent development, reminds employers to be sensitive about dress code requirements when they involve religious issues. The Young v. UPS case reminds employers about accommodation issues on pregnancy. It’s an important case and we have some great materials on it.

With respect to disability, one of the bigger ones is medical marijuana. I am sure you have seen in the news, medical marijuana is making headlines, and not only that, recreational as well. Right now Colorado, Alaska, Oregon, and Washington allow for recreational marijuana, so employers are certainly fretting over the implications of that.

There was a decision of Colorado called Coats, which was an employer friendly decision ultimately, but it’s a reminder that we need to be aware of medical marijuana in the workplace, and I think that’s not the last case we will see on that issue.

Renee Karibi-Whyte: So do you foresee a scene where next to the lactation room we have a tote room or something of that nature down the road?

Kate Bally: Well, given the Coats decision really came out in favor of the employer, I think that is far away from where we are now, but it’s hard to say, down the line maybe so.

Renee Karibi-Whyte: So did that decision not require employers to allow it on the grounds, and I am thinking here of certain employers are allowed to ban guns, for example on their work site, so I am thinking of it in that context, did it relate to that at all?

Kate Bally: I think there is a real fear among employers that they are going to have to accommodate people walking around high in the workplace, operating machinery, and advising people, and providing therapy and all kinds of situations in which clarity of mind is vital. So this was a little bit of a comfort for employers. And again, it’s just in Colorado, but it seemed to set the tone for the fact that employers are not going to be required necessarily to put up with people who are under the influence on the job and that was some comfort.

Renee Karibi-Whyte: I imagine they would always have to be able to perform the essential job functions.

Kate Bally: That’s right, absolutely. And of course, marijuana is still unlawful under federal law and that has to be taken into consideration now, where we are going with that is another question.

Renee Karibi-Whyte: So that sounds like another layer of challenge in terms of drafting handbooks, where the state law conflicts with the federal law. How can companies address that?

Kate Bally: It’s a difficult tightrope to walk. I think there has to be some flexibility, because you are mostly talking about multi-state employers, or you are often talking about multi-state employers and the law varies. So I think it’s a challenge to work through that, and often employers choose to tackle sort of accommodation requests on an individual basis and work through that with their employees.

They certainly don’t want to encourage drug use generally I would say, that’s a general rule, but you do need to have what’s called the interactive process with your employees with respect to their medical conditions, which is to say a back and forth dialogue, how can we make this work for you in a way that’s not unduly burdensome for us as the employer.

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Renee Karibi-Whyte: So wage and hour has been a major issue for at least the past ten years and I would think by now that people would understand what the requirements are, but it still seems to come up time and time again, there is still a ton of litigation on it, there still seems to be a lot of confusion from companies on it, why?

Kate Bally: Yeah, great question. The area of wage and hour has changed though. As of May 2016 there were new rules issued by the Department of Labor and they go into effect in December and they double from $455 to $913 per week the minimum salary required for exemption, for executives, administrative and professional employees, and that’s meant quite a few changes in the workplace.

Renee Karibi-Whyte: So is it that the law keeps changing and that’s why it continues to be an issue?

Kate Bally: That’s right, yes, indeed.

Renee Karibi-Whyte: Are there differences there between federal and the state as well?

Kate Bally: Oh, that’s an important question. Yes, they are important distinctions and it’s vital for employers to get right wage and hour obligations at the state level, because those vary dramatically and can be much more onerous above and beyond the federal requirements.

Renee Karibi-Whyte: Now, another area you talked about was the Defend Trade Secrets Act?

Kate Bally: Yes, with respect to confidentiality, this is another new development.

Renee Karibi-Whyte: So can you tell us a little bit more about what that means for employers and in fact the handbooks as well?

Kate Bally: Yeah, so the Defend Trade Secrets Act has created a new civil remedy for employers who are interested in preserving their trade secrets and their rights with respect to those issues. It really does mean that employers should review their policies and handbooks, make sure that the confidentiality provisions are sound and in compliance with the DTSA. They also need to have new notice requirements and those need to be incorporated into confidentiality agreements and policies as well.

Renee Karibi-Whyte: Now, social media comes up often as an area of risk, has it actually turned out to be a significant risk for most organizations?

Kate Bally: We are seeing more and more litigation with respect to social media issues, and in particular the NLRB has been cracking down on companies getting it wrong.

Renee Karibi-Whyte: In their policies?

Kate Bally: That’s right, and unduly restricting employee activity with respect to social media, and that’s an issue that employers need to understand, not only unionized employers, but really all employers.

Renee Karibi-Whyte: Now, there may be some people who created a policy five years ago and haven’t looked at it since, is it important for them to revise it and revisit it on a regular basis?

Kate Bally: Absolutely. We recommend generally that employers revisit policies at least annually and have employees sign again and acknowledge that they have received those updates, because the law does change regularly. With respect to social media, that area of the law has changed dramatically. There are new decisions out of the NLRB regularly. So that one in particular is important and it’s easy to get your social media policy wrong.

Renee Karibi-Whyte: Now, I think we have just scratched the surface in terms of employee policies, but we have talked about a lot and we have covered a lot of ground, it sounds to me like these employee handbooks will be very large and difficult to get through for the average employee. How often do employees actually read the handbooks and how do employers make sure that what they have taken the time to creating a handbook actually gets read and followed?

Kate Bally: Yeah, that’s a good question. It’s hard to say exactly how often employees go back to handbooks. I think when issues come up surrounding leave or pay or harassment or they want to file an internal complaint, they do go back to the handbook and refer to that to understand what the employer expects and policies and procedures surrounding all of those issues, but it’s not uncommon for employees to skim it, sign it, be done with it. Nevertheless, that doesn’t make it unimportant with respect to your legal defense, should it come to that.

Renee Karibi-Whyte: So there is a definite need for an acknowledgment agreement.

Kate Bally: Absolutely.

Renee Karibi-Whyte: And it seems like it plays kind of a reference document role.

Kate Bally: Yes, indeed. So if you find yourself in court over these issues, it’s important to say to a plaintiff employee, look, I know that you saw the handbook and we have here proof that you have signed an acknowledgment of having reviewed it and understood it well, so if you want to come into court now and say that you didn’t, we have documentary evidence that we can show that that’s not the case.

Renee Karibi-Whyte: Okay. Well, thank you Kate for talking about those hot topics. As we wrap up, one of the things we like to ask our guests is a question about advice, so what was the best advice you were ever given, either personally or professionally?

Kate Bally: Well, when I was at Day Pitney my boss thanked me for something that I hadn’t done, and I said, nope, I didn’t do that, thank someone else. And he said, listen Kate, I will tell you, you will be thanked for a lot of things you did and thanked for a lot of things you didn’t do, but a lot of times you won’t be thanked for something that you did, so take it when you can get it, and I thought that was great advice.

Renee Karibi-Whyte: That is great advice. So we are out of time today, but Kate, before we go I want to make sure that people have a place they can go to get additional resources and information.

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Kate Bally: Yeah, there are quite a few resources out there to be sure. Practical Law actually has quite a few quality resources, including our Employment Handbook Toolkit, which includes practice notes, standard documents and checklist to help you draft the ideal handbook.

Renee Karibi-Whyte: If our listeners have questions or want to follow up, Kate, how can they get in touch with you?

Kate Bally: They can reach me by email at  HYPERLINK “mailto:[email protected]” [email protected].

Renee Karibi-Whyte: Okay. Well, thank you again Kate Bally, Director of Practical Law Labor & Employment.

This has been Thomson Reuters: Down the Hall with Practical Law. I am Renee Karibi-Whyte. Until next time, thanks for listening!

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