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2016 Is Here! Time To Review And Update Your Employment Policies

[February 9, 2016] With the new year well underway, we strongly encourage employers to review and update their employee handbooks and other personnel policies to stay legally compliant.  Here are some recommended steps for getting your policies into shape for 2016:

Do A Headcount

If you have historically had fewer than 20 employees but now find yourself with a few more, remember that Massachusetts requires employers with 20 or more employees to maintain written personnel policies.  This would be an ideal time to adopt an employee handbook for your organization, if you haven’t already done so.  Likewise, recent headcount increases may have brought you within the scope of important federal laws, such as COBRA or the Family and Medical Leave Act.  If so, you will need to adopt new policies and train managers in complying with the newly applicable laws.

Consider Your Workplace Practices

Do the policies described in your handbook match your organization’s actual practices?  For instance, do you have a strict, “business use only” written Internet policy but, in practice, allow employees to surf the Web for personal purposes?  We recommend updating any policies that don’t mesh with the way things actually work within your organization, as inconsistencies can create legal risks.

Review And Update Your Policies

As 2015 saw numerous important developments in employment law, it’s important to ensure that your policies accurately reflect current legal requirements.  In particular, we suggest focusing on the following:

Massachusetts Earned Sick Time – As of January 1, 2016, the “safe harbor” provided to employers under the new Massachusetts Earned Sick Time Law has expired.  Thus, each Massachusetts employer needs to have a policy offering paid or unpaid sick time (depending on an employer’s size) to employees in accordance with the statute.  Managers and benefits personnel should be trained to be sure they understand their responsibilities and employees’ rights under the new law.

Massachusetts Parental Leave – The former Massachusetts Maternity Leave Act was expanded in 2015 to cover male and female employees equally, and accordingly renamed the Massachusetts Parental Leave Act (MPLA).  Certain other changes were also made to the statute.  It’s important to update your leave policies and practices accordingly.

Same-Sex Marriage – In its landmark Obergefell decision, the U. S. Supreme Court ruled that same-sex married couples can’t be denied benefits that are provided to opposite-sex married couples.  Employers need to be sure that their benefit and leave policies have been revised to comply with the Obergefell decision.

Sexual And Other Harassment – How recently was your harassment policy updated?  It should prohibit not just sexual harassment, but all forms of harassment based on a protected characteristic.  For instance, your harassment policy may need to be updated to cover emerging issues such as gender identity discrimination.

Retaliation – Retaliation claims continue to predominate among charges filed with the Equal Employment Opportunity Commission (EEOC) and state agencies. It is critical that an employer have a carefully drafted policy prohibiting retaliation against employees who engage in protected activity, such as reporting harassment or filing a charge of discrimination.

Social Media – The National Labor Relations Board (NLRB) continues to pay close attention to social media and other workplace policies, such as confidentiality rules and restrictions on the use of company logos.  Policies that the NLRB views as restricting employees from engaging in concerted activities protected under federal labor law have been routinely struck down.  For this reason, employers should have their social media and similar policies reviewed by experienced labor counsel to minimize the risk of a challenge by the NLRB.  Employers should also be aware that an increasing number of states have enacted laws prohibiting employers from asking employees to provide passwords for their social media accounts.

Smoking – While many states ban smoking in some or all workplaces, the increasing use of electronic smoking devices, or “e-cigarettes,” has become a growing workplace issue.  Hawaii recently became the first state to ban the use of e-cigarettes where smoking is prohibited, and other states are likely to follow.  Employers may want to update their anti-smoking policies to explicitly prohibit e-cigarettes.

Discipline – Does your organization have a disciplinary policy prescribing a particular process or sequence of discipline?  A policy of that nature, if not carefully drafted, may create contractual obligations to employees.  In lieu of a strict disciplinary policy, you may want to adopt a more flexible “performance management” policy.

Reasonable Accommodation –  Under the Americans With Disabilities Act and equivalent state laws, employers are required to provide reasonable accommodations for otherwise qualified individuals with disabilities.  In recent years, the EEOC and other anti-discrimination agencies have been paying close attention to disability accommodation issues.  Thus, you should ensure that your organization has a written policy detailing how employees should request workplace accommodations and how those requests will be evaluated.  Remember, as well, that employers are also obligated to provide reasonable accommodations for pregnancy and religious beliefs.  The EEOC has recently provided updated guidance in both of those areas, indicating that the agency is paying close attention to these issues.

Other Recommendations For Employers

In addition to updating your employee handbook and any other personnel policies, you should confirm that your workplace posters are up to date.  For example, Massachusetts employers are now required to post notices detailing employees’ rights under the Earned Sick Time Law and the MPLA.  Similarly, the minimum wage in many states increased as of January 1, 2016, requiring employers in affected states to post new notices.

Also, we anticipate that proposed changes to the “white collar” exemptions under the federal Fair Labor Standards Act will be finalized sometime this year.  Under those proposed changes, the minimum weekly salary required to be paid to an exempt employee will increase dramatically, from $455 to $970.  For employees currently classified as exempt who earn less than that new weekly threshold, employers will need to determine whether to increase their salaries to meet the new minimum or reclassify those employees as non-exempt, making them eligible for overtime pay.  We recommend that employers begin that decisional process now.

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The attorneys at our Firm have a wealth of experience in preparing employee handbooks and counseling employers on compliance with workplace laws.  Please let us know if we can assist your organization with these critical tasks.