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E-Alerts

Start 2010 Off Right: Review And Update Your Employment Policies

February 2010 by Sara Goldsmith Schwartz

January is coming to a close, but there is still time to ensure that your organization’s personnel policies are up-to-date and legally compliant for 2010.  We recommend that employers review personnel policies annually, to ensure compliance with all applicable changes in the law and that the policies accurately reflect current practices.  This year, given the numerous and significant changes to many employment laws, as well as the laws that will become effective during 2010, such a review is especially critical.

To ensure that your organization’s personnel policies are legally compliant, we recommend that you consider the following:

  • Due to a recent decision by the Supreme Judicial Court of Massachusetts, all small employers (those with fewer than 6 employees) are urged to implement an employee handbook. Smaller employers can now, definitively, be sued for employment discrimination and the claims go directly to court, bypassing the administrative agencies.  Notably, the decision also expands the scope of employment-based discrimination claims to enable independent contractors to sue for workplace discrimination, going to court first and bypassing the agencies, regardless of the size of the employer.  For more information, please see the Firm’s Update article.
  • Less than one year after the Department of Labor’s revised Family and Medical Leave Act (“FMLA”) Regulations went into effect (January, 2009), President Obama signed into law a further expansion of the family military-leave related components of the FMLA. This latest amendment went into effect in October, 2009, and expanded: (1) Qualifying Exigency Leave to apply to employees with family members in the regular Armed Forces, and (2) Military Caregiver Leave to apply to veterans.  Since the revised regulations require that employers include a detailed FMLA policy in their employee handbook or provide one to all new hires, it is imperative that FMLA policies be revised immediately to reflect the FMLA expansion.
  • In 2009, the Americans With Disabilities Act was amended to greatly expand the definition of disability and therefore the statute’s coverage.   Employers should review their accommodation practices for compliance and ensure that managers are trained in the statute’s new requirements.
  • The Department of Homeland Security formally rescinded the Social Security No Match Rule in 2009.  However, employers should still establish internal protocols to follow when an employer learns that an employee provided an incorrect Social Security Number or receives other information that questions an employee’s legal authorization to work in theUnited States.
  • The federal Genetic Information Nondiscrimination Act (“GINA”) became effective on November 21, 2009.  While many states already prohibit discrimination based on genetic information, this federal law establishes a new baseline across the country.  Employers should review their equal employment opportunity, anti-harassment, and related policies to ensure compliance with GINA.
  • Religious accommodation issues continue to challenge employers.  Accordingly, employers should review their dress code, grooming and attendance policies to ensure that employees have an avenue for requesting exceptions to these policies.  Further, we recommend management training in this area, since often these issues are immediately addressed by front line managers, without the involvement of Human Resources or senior management.
  • Whistleblower and retaliation cases have increased dramatically.  Employers should consider implementing a policy that specifically addresses internal reporting procedures and that prohibits retaliation for raising such concerns.
  • Massachusettsextended the deadline for complying with its new Data Security Law until March 1, 2010; however, by that date, covered employers (all entities withMassachusettsemployees and/or clients) must have written security programs in place, conduct employee training, and ensure that their data-security technology complies with the new law.  Many related personnel policies, such as employee conduct, confidentiality, termination of employment and return of the employer’s property, may require revision to align with the employer’s data security compliance measures.
  • Massachusettsemployers should review their equal employment opportunity and anti-harassment policies to ensure that such policies address a recent decision by the Massachusetts Commission Against Discrimination finding that gender identity is a protected category.
  • Lawsuits alleging wage violations continue to rise across the country.  Employers should ensure that wage practices and policies (such as exempt and non-exempt status, overtime pay, minimum wage, wage deductions, and meal and rest breaks) comply with both the federal Fair Labor Standards Act and the laws of each state in which the employer operates.  This review is especially critical for Massachusetts employers, since Massachusetts employers are liable for mandatory treble damages for any violation of Massachusetts’ payment of wages laws, regardless of the employer’s good faith efforts to comply with the law.
  • State variations in the enforceability of noncompetition agreements continue, while there has been an uptick in the number of lawsuits seeking to enforce non-competition, non-solicitation, and other restrictive agreements.   Employers should review their policies and template agreements to ensure they remain enforceable in the localities in which the employer operates.
  • Many localities (includingCalifornia,Connecticut,New Jersey,New York,Washingtonand theDistrict of Columbia) have banned the use of handheld cell phones while driving, while others, such asMaine, have banned “distracted driving.” Massachusettsis likely to implement a ban on texting while driving. Employers will want to consider implementing a policy outlining the employer’s philosophy about this issue, with respect to company cars and driving during work hours.
  • Employees’ online activities continue to impact the workplace.  Employers should review their electronic communications policies and practices to ensure that such policies address employees’ blogs and online profiles, while not violating employees’ privacy rights and the right to engage in collective action.
  • Finally, the federal COBRA subsidy was extended to apply to employees involuntarily terminated through February 28, 2010 and to increase the assistance period to fifteen (15) months.  Employers must ensure that appropriate notices are provided.

In addition to reviewing these changes in the law, employers should review all personnel policies to consider the laws of any states into which they have recently expanded and to ensure that written policies comport with actual practices.  Moreover, given the beginning of an economic recovery, employers should review their hiring practices, including employment applications, offer letters and incentive compensation programs, to determine if any updates are needed.

The Firm has extensive experience in drafting employment policies across a wide range of industries and for employers of all sizes, including multi-state employee handbooks and managers’ guides.

Please feel free to contact us for assistance in updating your organization’s employee handbook and/or managers’ guide, drafting your first employee handbook and/or managers’ guide, drafting or revising discrete policies, or developing training in regard to your organization’s employment policies.