It is Time to Update Your Employee Handbook. (No, That Was Not a Question) — EXPERT GUIDANCE

Let's be honest - no one gets excited about spending time or money working on their employee handbook. Many employers think that their ten-year-old handbook is fine, and they take the approach of "if it ain't broke, don't fix it." Right? Wrong. I can almost promise you that something in your handbook is broken - and you just don't know it - yet.

Employment laws continue to change and evolve. Your organization continues to change and evolve. If you have not updated your handbook to meet those changes, then you may be in peril.

Having overhauled a dozen handbooks just since the pandemic began, here are my top 10 issues that I commonly see with employee handbooks that can become problems if not addressed:

1.

Does your handbook expressly prohibit discrimination based on sexual orientation and gender identity? It better following the Supreme Court's 2020 decision in Bostock v. Clayton County that brought sexual orientation and gender identity under the protections of Title VII.

2.

Do you give light-duty accommodations for employees who suffer workplace injuries so they can still work? If so, then you may consider providing the same type of light-duty accommodations for pregnant employees, as well as expressly addressing pregnancy accommodation in your handbook.

3.

Do you pay employees for short-term absences related to things like jury duty and bereavement but not for short-term military service? If so, then you may be violating federal law.

4.

Does your handbook state that employees who do not return to work at the end of the ir 12 weeks of FMLA-protected medical leave (or after any arbitrary period of time) will be automatically terminated? I hope not, because federal law may require you to give the employee additional unpaid leave as a reasonable accommodation for a disability.

5.

Can you prove that every single one of your employees received a copy of the employee handbook? If not, then you may have a hard time defending a sexual harassment lawsuit when the plaintiff says that he/she never received a copy of your harassment policy and/or procedure for reporting sexual harassment.

6.

Do you have employees working remotely, or otherwise, outside of the state(s) where you typically conduct business? Then you better be sure that your policies and practices comply with the laws of those states, too, which may require policy addendums in some instances.

7.

Does your handbook promise progressive discipline (e.g., three strikes and you're out) that you do not follow? This could be a breach of contract in some states or used against you as evidence of unlawful discrimination under some circumstances.

8.

Does your employee handbook prohibit employees from discussing their wages and other terms of their employment with other employees or third-parties? If so, then you may have already violated the National Labor Relations Act, which, by the way, applies to both unionized and non-unionized employers.

9.

Do you have a policy related to nursing mothers? Federal law and some state laws require employers to give a nursing mother a time and place to express breast milk.

10.

Finally, has your handbook kept up with recent changes brought on by the Covid-19 pandemic? I think we can all agree that, for better or worse, the pandemic has changed how and where people work. Employers more frequently use policies for remote working, mandatory vaccinations, flexible paid time off, and other things that were not given much consideration only a few years ago. Some of those policies which have been adopted “on the fly” over the past months and years may need to be incorporated into your handbook.

Yes, I know - employee handbooks are not exciting. But an updated, accurate, and legally compliant handbook provides an important opportunity to communicate with employees and avoid misunderstandings and disputes, as well as protecting the organization if a dispute arises. But having a legally deficient handbook can, in some instances, be worse than not having one at all. Governmental agencies are out in force, and employment lawsuits are on the rise. So, if your employee handbook predates the pandemic, then it's probably time for a checkup.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

 

Silenced No More Laws—Employers Should Know What Not To Say — EXPERT GUIDANCE(Sep. 16, 2022)

In the wake of the #MeToo movement, many West Coast states passed laws that encouraged employees to freely discuss workplace sexual harassment and forbid employers from stopping this speech. These laws typically focus on confidentiality, non-disparagement, separation, settlement, and arbitration agreements. But some laws are so broad that they may lead to unintended consequences, and worse yet, result in significant monetary penalties and damages. The trend that began with Washington state's Silenced No More law has now spread to 14 states, with two more states considering bills. Congress also joined the trend by passing bi-partisan legislation limiting arbitration agreements. Against this backdrop, employers must now know what not to say.

Washington state passed its Silenced No More Act in 2018. See Lane Powell's previous legal updates found here and here. In 2019, California followed suit. See our previous legal update here. Later that year, Oregon passed its Workplace Fairness law. Legislatures in Hawaii, Illinois, Louisiana, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Vermont, and Virginia have also passed legislation. On a national level, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This law amended the Federal Arbitration Act to void arbitration agreements and joint action waivers that purport to apply to claims of sexual assault and harassment. See our legal update regarding this topic here. The broad sweep of these laws will no doubt create compliance challenges, especially for multi-state employers. Indeed, state laws are not uniform in their prohibitions, coverage, and exceptions, and some impose steep penalties for noncompliance.

For example, Washington's law applies to agreements that limit disclosure of facts that an employee "reasonably believes constitute illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is recognized as against a clear mandate of public policy." Washington's law also applies to current, former, and prospective employees and independent contractors. Washington's law may also have implications on employers' ability to require confidentiality during workplace investigations.

Oregon's law applies to former employees and limits mediators who are mediating harassment or discrimination claims. California's law originally applied to claims for sexual discrimination, assault, and harassment, but was expanded to apply to claims for any kind of discrimination or harassment in employment or housing.

Some of the state laws also mandate magic language be used in agreements and policies. California's law requires that waivers inform the employee of their right to seek legal guidance, and requires employers to give employees at least five business days to consider the agreement before signing. Oregon's law requires that employers adopt and distribute a written policy informing employees of the Workplace Fairness Act's requirements, and provide the policy to newly hired employees and anyone who files a complaint.

Exceptions to these laws also vary across states. California, Oregon, and Washington's laws contain exceptions for trade secrets and proprietary business information. Both Washington and California's laws permit employers to maintain confidentiality regarding the settlement amount. But Oregon's law only permits such a prohibition when requested by the aggrieved employee and only if the agreement contains a seven day revocation period and does not involve a public employee that has engaged in the discriminatory, harassing, or retaliatory conduct. California's law similarly permits confidentiality provisions that protect identifying information at the request of a claimant, as long as the other party is not a government agency or public official.

Non-compliance costs and penalties also vary. Washington and Oregon's laws impose monetary sanctions, but others do not. Washington's 2022 amendment to its Silenced No More Act imposes penalties equal to "actual or statutory damages of $10,000, whichever is more," and reasonable attorneys' fees and costs. Oregon's law imposes a $5,000 penalty, but permits courts to award additional damages, including punitive damages. California permits an aggrieved party to make a motion for fees, including under any contractual fee provision contained in the challenged agreement.

What Should Employers Do Now?

  • Review your standard employment agreements to ensure they are compliant with requirements in the states where your employees are working;

  • Ensure your employee handbook policies comply with these new laws;

  • Review separation and settlement agreements to ensure compliance with applicable state and federal laws limiting confidentiality;

  • Evaluate your arbitration agreement in light of the federal exceptions for sexual harassment and assault claims; and

  • Consult legal counsel with any questions or uncertainties, especially when terminating employment and offering a separation agreement.

USPS Announces Peak Season Prices for Competitive Products

As expected, the Postal Service will be increasing prices for some competitive products over the coming holiday season. Following the approval by the Governors of the USPS at their meeting on August 9, the prices were announced by the agency on August 10. The temporary price increase will take effect at 12am CT on October 2 and expire at 12am CT on January 22, 2023.

 

Given that the USPS will be implementing higher rates for market-dominant products on January 22, it’s likely that, if higher rates for competitive products are announced later this year, those would take effect that day as well.
 

As stated in the Governors’ decision submitted to the Postal Regulatory Commission on August 10:
 

“A. Priority Mail Express. Overall, the Priority Mail Express price change represents a 2.7% increase. The existing structure of zoned Retail, Commercial Base, and Commercial Plus price cate-gories is maintained, with Commercial Base and Commercial Plus prices continuing to be set equal to each other. Retail prices will increase 2.8% on average. The Commercial Base and Commercial Plus price categories will increase 2.1% on average.
 

“B. Priority Mail. On average, the Priority Mai! prices will be in-creased by 6.3%. The existing structure of Priority Mail Retail, Commercial Base, and Commercial Plus price categories is main-tained. Retail prices will increase 6.3% on average. The Commer-cial Base and Commercial Plus price categories will increase 6.1% on average.
 

“C. Parcel Select. On average, prices for destination-entered non-Lightweight Parcel Select, the Postal Service’s bulk ground ship-ping product, will increase 10.2%. The prices for destination de-livery unit (DOU) entered parcels will increase 5.9%. For destina-tion sectional center facility (DSCF) destination entered parcels, the average price increase is 12.8%. For destination network dis-tribution center (DNDC) parcels, the average price increase is 12.8%. Parcel Select Ground will see a 4.2% price increase, while prices for Parcel Select Lightweight will not change.
 

“D. First-Class Package Service. First-Class Package Service (FCPS) prices will increase 8.3% overall, which reflects a 8.4% for FCPS-Commercial, and a 8.2% for FCPS-Retail prices.
“E. USPS Retail Ground. USPS Retail Ground prices will increase 5.8%, and the Limited Overland Routes category will increase 10.2%. 
 
“No price changes are being made to Special Services or Interna-tional competitive products.”
 

The full USPS filing, including complete rate charts for the temporary prices, can be found on the PRC website at https://www.prc.gov/dockets/document/122448.

 

With medical and recreational marijuana becoming legal in more and more states, when to drug test – if at all – is one of the most challenging questions facing employers. As of the writing of this alert, recreational marijuana is legal in 19 states (including New Jersey and New York), two territories, and the District of Columbia. Medical marijuana is legal in 39 states (including Pennsylvania, Delaware, New Jersey, New York and Maryland), four territories, and the District of Columbia.

Many state and local laws include substantial employment protections for people who engage in lawful behavior with respect to marijuana, which creates challenges for employers because testing for THC – the main psychoactive compound in cannabis that produces the high sensation but also is present in medical marijuana – remains an inexact science. Unlike alcohol, THC remains in the body’s system for an extended period of time, making it difficult to tell from test results alone if an employee is impaired at work (a terminable offense) or legally ingested cannabis the night, or even several days, before.

The good news for employers is that, in general, it remains legal to ban the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis or cannabis items in the workplace and during work hours, and employers may forbid employees from coming to work under the influence of marijuana. In addition, employers may administer drug tests to employees and may be entitled to discipline or discharge an employee who used, possessed, or was under the influence of marijuana while in the workplace or during work hours. Best practices dictate (and, in some cases, the law requires) that employers train their supervisors to detect reasonable suspicion for impairment and to take an adverse employment action only when documented reasonable suspicion is combined with a contemporaneous positive test. Deciding whether and when to test is not a black and white issue, and employers in many cases must consider and weigh the legal risks associated with this decision, as well as the impact on safety, workplace culture and recruitment and retention.

Employers in states with medical marijuana statutes also must be mindful of legitimate employee medical needs and how such laws may impact their reasonable accommodation obligations under disability discrimination laws. Many recent court decisions have recognized increased protections for medical marijuana users, holding that permitting use of medical marijuana recommended by an employee’s doctor can be a reasonable accommodation such that an employer must, at a minimum, engage in the interactive process under disability discrimination laws.

Through all of this, employers must remember that marijuana remains an illegal drug under federal law, and employers subject to Department of Transportation and federal contractor requirements regarding drug-free workplace policies and marijuana testing may need to adjust their policies accordingly.

Employers should consult with experienced human resources professionals and/or labor and employment counsel when in doubt about implementing drug testing policies. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney are available for additional consultation.

For additional information, please join us on July 19th at 11 AM for ourMEA Insights Webinar on Marijuana & the Workplace: Employer Challenges.

Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers' Association
800-662-6238

*This Alert is provided for general informational purposes only and does not constitute legal advice.

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