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28 Take Charge Employee Handbook Updates for 2009

Smart employers take charge of their workplace and take steps to prevent employee lawsuits.

This includes continually updating their employee handbooks. Technology, business practices, employment laws and even society itself are changing at a staggering pace. The policies set out in your employee handbook must keep up. Otherwise, your handbook could go from a legal shield that protects you to a legal sword plaintiff’s attorneys can use against you.

Since 1999, we have prepared customized employee handbooks for dozens and dozens of clients. We track their custom provisions. We also keep track of employment law changes, recent court decisions, problems faced by other employers and other social changes. Each year we offer our clients updated handbooks which maintain their custom provisions.

As part of our 2009 annual review, 28 crucial employee handbook updates were identified. You should make similar changes to your employee handbook.

The easier a handbook is to read, the more likely its provisions will be enforced by a court, arbitrator or administrative agency. Most handbooks, however, read at above a 12th grade level. Courts are beginning to rule that if an employee does not understand a written policy, it does not apply to that employee.

You should rewrite your employee handbook so that it reads at an 8th grade level. It can be done. We have been doing this for our clients since 2007.

Ledbetter Fair Pay Act
The first piece of legislation signed by the new administration was the Ledbetter Fair Pay Act. This new law will increase the number of pay discrimination claims, revive claims that have previously been extinguished and place new burdens on employers. You should revise your employee handbook to require your employees to report any discrimination they experience or observe, including pay discrimination.

This may not prevent pay discrimination claims but may allow you to question why claims brought after the fact were not reported sooner.

New Supreme Court Harassment Decision
The United States Supreme Court held on January 26, 2009 that an employee’s statements made during a sexual harassment investigation are protected against retaliation. Your handbook should require employees to cooperate with your investigations and protect them from retaliation for doing so.

Religious Accommodations
More and more employees are requesting religious accommodations. Some requests may be required, others are not. You are only required to consider sincerely held, generally recognized religious beliefs that do not interfere with safety, efficiency, discipline or other business concerns. Your handbook should make this clear.

Genetic Information Discrimination
The Federal Genetic Information Nondiscrimination Act (GINA) went into effect on November 1, 2008. Your handbook’s equal employment opportunity provisions must be updated to comply with this new law.

In 2008, more of our clients had problems with employee fights than ever before. Although it should go without saying, add a specific policy prohibiting fighting and provoking a fight. You should also consider adding a Guide to Getting Along.

Starting Competing Business
Why should you give employees vacation time to set up a competing business or work for a competitor. You can update your vacation policy to prohibit this misuse of your vacation benefits.

Active Duty Family Leave
The National Defense Authorization Act (NDAA) was signed into law in January 2008. That act amended the Family Medial Leave Act (FMLA) to allow employees to take leave in certain circumstances when a family member is called to active duty.

Regulations interpreting this act were published at the end of 2008. Update your handbook to implement these new regulations.
Injured Service Member Leave
The NDAA also created a special FMLA leave allowing employees to care for injured service members. This too should be addressed in your employee handbook.

New FMLA Regulations
The new FMLA regulations are extensive. They are not limited to just active duty family leave and injured service member leave. You can now require employees to follow new requirements allowed by the new regulations. To do this, however, you must update your handbook.

Light Duty
If you provide light duty work for injured employees, you need flexibility to assign than wherever an appropriate task may be available. Make this clear by updating your handbook.

Attendance issues are always a huge problem for employers. Now some employees are claiming they should not have been disciplined or terminated because their failure to show up for work is itself a disability. There are changes you can make to your hand book to protect you from these claims.

Inappropriate T-Shirts
You would think that adults would know better than to wear t-shirts or other clothing with obnoxious, offensive or sexually explicit messages to work. You would be wrong. Not only can this annoy others and disrupt your workplace but it can lead to racial, religious, disability or sexual harassment claims. Address this problem by updating your Appearance policy.

Drugs & Alcohol
As issues in this area continue to evolve, your drug and alcohol policy should be continually updated. This year is no exception. You should make six updates to your Drug & Alcohol policy. The first is to make clear that refusing a drug test violates your drug policy.

Altering Samples
Drug users go to great lengths to attempt to “beat” drug tests. The testing labs are aware of this and have ways of identifying samples that have been altered or tampered with. Your employee handbook should make clear that altering or tampering with a sample violates your drug policy.

Unemployment Benefits
Under Oregon law, employees who are discharged for violating your drug policy are prohibited from receiving unemployment benefits. Let your employees know this in your drug policy. Perhaps this will be enough to prevent some employees from using drugs. If not, there is a way you can induce employees who fail a drug test to simply resign rather than fight termination.

Release of Test Results
Your drug and alcohol policy should specifically provide that test results may be released to the employment division. You may also want to add this provision to a separate agreement signed by your employees.

Use of Test Results
If an employee brings an administrative claim before the Oregon Bureau of Labor & Industries (BOLI), a mediation proceeding, an arbitration action or a lawsuit against you, you should be able to use the failed drug test results to defend yourself. If you want to do this, update your drug policy.  Also include the same provision in a separate agreement signed by your employees.

Medical Marijuana
Oregon’s medical Marijuana statute specifically states that it does not apply to workplace drug policies. Employers were surprised when the Oregon Court of Appeals, nevertheless, found a convoluted way to require employers to accommodate medical Marijuana. You can, however, require those employees with medical Marijuana cards to follow certain requirements. If they fail to do so, you can take corrective action, including termination.

Union Organization Defense
New laws are expected that will make it easier for unions to organize almost any workplace. You should add, review and enhance your handbook provisions preventing use of your facilities for union organizing efforts.

Complaint Procedure
A grievance procedure is recognized as a method of countering a persuasive union argument. You should add a complaint procedure as part of your union avoidance strategy.

Confidentiality Savings Clause
The National Labor Relations Board (NLRB) argued in federal court that non-union employers’ confidentiality provisions violate the National Labor Relations Act (NLRA). The argument was that confidentiality provisions can make it more difficult to organize a union. The NLRB won, the non-union employer lost.

You can add a “savings” clause that retains important confidentiality provisions but makes clear the policy does not violate the NLRA.

Speaking of confidentially, the scope of the confidentiality protections in most employee handbooks can and should be expanded.

Americans with Disabilities Act
Employers have had to comply with the Americans with Disabilities Act (ADA) since 1990. In January 2009, the ADA Amendments Act of 2008 (ADAAA - I do not make these acronyms up) went into effect. Essentially the ADAAA changes the focus from asking whether an employee is disabled to whether the employer has satisfied its legal obligations to the employee. As a result, you should update the disability provisions in your handbook.

Removal of Documents
Employees who want to sue you may take (steal) your documents and use them against you. It has become a recurring trend. Update your handbook to make it easier for you to prevent use of stolen documents in a court or other proceeding.

The same policy can also protect the private information of employees from theft by other employees.

Oregon has a new, tough nonsmoking law that now covers all employers. Your 2009 handbook should be updated accordingly.

There is a well publicized case where an employee secretly recorded workplace conversations to use against his employer. This looks like it may become another new trend. By prohibiting employee recordings (without limiting your ability to do so), you may be able to prevent an unauthorized recording from being used against you.

Resignation & Retirement Notices
Many employers choose to pay departing employees after they give notice if the employer wants them out of the workplace. Your handbook can set out a similar policy. If you already have such a policy, update it now to set out reasons why pay may be denied based on the employee’s misconduct.


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