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E-Alerts

Spring Cleaning: Time to Review and Update Employee Handbooks

[April 9, 2013]  It’s that time of year again – spring is here, and it’s the perfect time for employers to review employee handbooks to ensure that policies are up-to-date and legally compliant.  The employment and labor law landscape is constantly changing, and it is important to stay abreast of new developments in the law. We highly recommend that employers review employee handbooks annually, add all any newly required policies, and revise existing policies that have become outdated or are no longer legally compliant.

To assist in this annual task, the following is a summary of significant changes in the law that have occurred over the past year. When conducting the annual handbook review, employers may want to focus on these issues.

Social Media Policies.  2012 was an active year for the National Labor Relations Board (“NLRB”), particularly in the area of social media. The NLRB issued no fewer than four lengthy and detailed memoranda on this topic, along with several decisions. Taken together, the upshot of the NLRB’s pronouncements on social media is that many common provisions in employers’ social media policies violate the National Labor Relations Act (“NLRA”). This is because, in the NLRB’s view, those provisions are overbroad and/or vague and therefore infringe on employees’ right to engage in “protected concerted activity.” Significantly, even private, non-union employers are covered by this section (Section 7) of the NLRA, and so these recent decisions and memoranda are of concern for all employers, not only union shops. We recommend that employers ensure that their social media and related policies are narrowly tailored to protect legitimate interests and do not potentially chill employees’ Section 7 rights.

At-Will Disclaimers.  Another area of interest for the NLRB has been at-will disclaimers. Most employers include broadly worded at-will disclaimers in many of their employment documents, ranging from offer letters to employee handbooks – indeed, employers often place at-will disclaimers in several places in handbooks, including in the acknowledgement forms that employees sign. In general, the NLRB has opined that a disclaimer violates the NLRA if it refers to an iron-clad at-will relationship that cannot be amended, modified or altered under any circumstance. Specifically, the NLRB has adopted the position that such disclaimers unlawfully purport to nullify employees’ right to negotiate collectively to change their at-will status. In contrast, the NLRB has approved at-will language defining the circumstances under which the at-will relationship could be altered, such as in a written document signed by an officer of the company and the employee. We recommend that employers review their employment documents and policies with an eye toward modifying at-will disclaimers, as necessary.

Confidentiality Provisions.  In a decision issued during the summer of 2012, the NLRB found that an employer policy (requesting that employees maintain confidentiality during all internal investigations) violated the NLRA, even though the employer did not threaten to take disciplinary action if an employee breached confidentiality. This is a common provision in employment policies that provide for investigation of employee complaints, such as policies against sexual harassment. According to the NLRB, in order to avoid infringing on employees’ Section 7 rights, an employer must make an individualized determination, in each case, as to whether legitimate interests – such as a need to protect witnesses, preserve evidence or testimony, or prevent a cover-up – justify a request that employees maintain confidentiality. While there is some question as to whether a federal appeals court would uphold the NLRB’s decision on this issue, unless and until the decision is reversed, we recommend that employers review their investigation policies and revise blanket confidentiality policies to provide for an individualized assessment of the need for confidentiality.

Background Check Policies.  The Equal Employment Opportunity Commission (“EEOC”) has issued formal Guidance for employers to follow when using criminal background information to make employment decisions. Two major highlights of the EEOC’s Guidance were directives to employers to avoid bright-line policies and to conduct individualized assessments. Regarding the former, the EEOC takes the position that a blanket policy denying employment to all applicants with criminal conviction records violates Title VII. The EEOC recommends that employers instead utilize a targeted screening process that considers factors such as the nature of the crime, the time elapsed since the conviction, and the nature of the job held or sought. The most burdensome provision in the Guidance is the EEOC’s suggestion that employers are required to conduct an “individualized assessment” before disqualifying an applicant based on criminal history. The Guidance lists a number of factors that employers should consider as part of an individualized assessment, including the facts and circumstances surrounding the criminal offense, employment or character references, and any evidence that the applicant performed the same type of work following his/her conviction without incident. Although the Guidance is not legally binding, and it is unclear how courts will use the Guidance in ruling on Title VII cases, it is clear that the EEOC will be relying on the Guidance in its enforcement of Title VII. Accordingly, prudent employers will review current practices and policies regarding criminal background checks and consider whether changes are warranted.

FMLA Policies.  On February 6, 2013, the U.S. Department of Labor (“DOL”) issued new regulations under the Family and Medical Leave Act (“FMLA”). The regulations, which took effect on March 8, 2013, implement recent statutory expansions of the FMLA regarding military family leave and eligibility requirements for airline flight crews. The new regulations also clarify the DOL’s position regarding calculation of intermittent leave and remind employers of their confidentiality requirements under the Genetic Information Nondiscrimination Act (“GINA”). The DOL has issued a new FMLA poster incorporating these changes. We recommend that employers covered by the FMLA familiarize themselves with the changes implemented through the new regulations and ensure that they have updated their FMLA policies and forms and posted the updated poster.

MA Employers:  Policies Regarding Access to and Use of Criminal History.  In Massachusetts, the remainder of the Commonwealth’s Criminal Offender Record Information (CORI) reform law took effect in early May of 2012.  The new requirements that went into effect include:

i) Written CORI policy – An employer that obtains CORI generally must have a written CORI policy that plainly describes its method of obtaining and using CORI.

ii) New State Criminal Record Database – Under the CORI reform law, all Massachusetts employers have access to a CORI database operated by the state. The law contains certain “safe harbor” protections designed to encourage employer use of the database. However, employers are still permitted to obtain criminal background information from third-party vendors.

iii) New Requirements for Obtaining CORI – All Massachusetts employers must comply with new rules to obtain CORI, regardless of whether they obtain the information directly from the CORI database or through a third-party vendor. The new rules include a requirement to provide applicants and employees with copies of their CORI records and specific recordkeeping and document destruction requirements.

iv) New Requirements Regarding Dissemination of CORI – Employers that obtain CORI are required to track its dissemination and maintain such dissemination information for auditing purposes.

We recommend that Massachusetts employers that conduct criminal background checks ensure that they are familiar with, and in compliance with, all applicable CORI reform law requirements.

MA (& Other) Employers: Medical Marijuana.  During 2012, Massachusetts citizens voted to join 17 other states and the District of Columbia in decriminalizing the use and possession of marijuana for medical purposes. (These 17 other states include Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.)

The new Massachusetts law, which went into effect on January 1, 2013, eliminates state criminal and civil penalties for the medical use of marijuana by patients with certain “debilitating medical conditions.” While the law does not require employers to accommodate “on-site medical use of marijuana in any place of employment,” the law is silent regarding any obligations an employer may have to an employee who uses medical marijuana outside of the workplace.

As a result, employers should think proactively about the types of issues that could arise as a result of the medical marijuana laws in their state(s), and what the appropriate response should be. For example, an employer may confront a situation in which an employee who legally used medical marijuana outside of work tests positive in a workplace drug test.

CA Employers:  Personnel Policy Changes.  California employers have a number of new employment laws of which they should be aware.  The laws, which became effective on January 1, 2013, include the following changes:

i) Definition of “Sex” Includes Breastfeeding.  The California Fair Employment and Housing Act (“FEHA”) has been amended to add breastfeeding and related medical conditions to the FEHA’s definition of “sex.” Employers will also be required to provide employees with an update to the mandatory Discrimination and Harassment Notice.

ii) Religious Dress and Grooming are Protected.  The FEHA precludes employers from discriminating against employees on the basis of their religious beliefs and observances, and requires that employers provide reasonable accommodations for such practices, unless doing so would create an undue hardship. In this regard, the law has been expanded to include religious dress and grooming practices as covered “beliefs and observances.” The new law also expressly states that in providing a reasonable accommodation of employees’ religious dress or grooming practices, employers may not segregate employees from the public or other employees.

iii) Personal Social Media Passwords are Private.  A new law prohibits California employers from requiring or requesting that employees or job applicants provide their user names or passwords for personal social media accounts, access their accounts in employers’ presence, or divulge their personal social media activities. The law also prohibits employers from discharging, disciplining, threatening, or otherwise retaliating against an employee or applicant for not complying with a request by the employer that violates any of the law’s proscriptions. There is, however, a limited exception allowing employers to ask employees for information about personal social media for the purpose of an investigation into employee misconduct or illegal activity. In enacting this law, California joins Illinois, Maryland, and Michigan as states that have social media privacy laws on the books.

iv)  Written Commission Agreements Required.  A new California law specifies that employment agreements providing for commissions must be in writing and must set forth the method by which commissions are to be calculated and paid. Employers must give signed copies of the agreements to employees and must obtain a signed acknowledgement of receipt.

v) Employees’ Right to Inspect Personnel Files Expanded.  New provisions in the law require California employers to maintain personnel files for at least three years following termination of employment, and to permit current and former employees or their representatives to inspect and receive copies of their personnel files within 30 days of receiving a written request.

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In light of these recent, significant changes to employment and labor laws, we encourage employers to familiarize themselves with these changes and to review and update their employment policies and documents as needed to ensure legal compliance.

If you have any questions regarding these developments or any other employment or labor law issue, please do not hesitate to contact us.