● phone (602) 281-3400 presented by: shayna h. balch phone: (602) 281-3406 email:...

www.laborlawyers.com ● Phone (602) 281-3400

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Shayna H. BalchPhone: (602) 281-3406

Email: [email protected]

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Arizona Lodging & Tourism Association


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Presented by:Matthew Simpson

Phone: (404) 240-4152 Email: [email protected]

Jansen Ellis

Phone: (404) 240-4212


New Year, New Rules! How to Create the Ideal

Employee Handbook and Personnel Policies

Presented by:Shayna H. Balch

Phone: (602) 281-3406Email: [email protected]

Arizona Lodging & Tourism Association


Handbook Objectives

Employee Based:• Answer basic questions• Describe benefits• Identify expectations• Outline acceptable behavior


Handbook Objectives

Employer Based:• Promote the Company• Comply with the law• Protect against litigation• Improve unemployment experience

rating


The Most Common Mistakes

• Not tailoring to your business• Giving employees “rights”• Trying to solve every problem• Not following through• Forgetting to update• Making it a procedure manual

for management


Handbook Essentials

• At-will• EEO• No Harassment• Reasonable Accommodations• Drug and Alcohol• Open Door/Reporting

Procedures• Basic Work Rules• Electronic Communications

• Work Schedule Absenteeism/Tardiness Overtime Timekeeping

• Leave Policies Jury Duty Witness Duty Voting Leave FMLA

• Protecting Information and Property


Preamble

• Welcome to Practice• Handbook is not an employment contract• Handbook confers no contractual rights to Employee• Supersedes all prior inconsistent handbooks or policies• Reserve right to amend handbook


Thorough At-Will Language

• With or without cause• With or without notice• Supersedes any prior agreements• Can only be changed in writing• Signed by the Owner or President


Promises that Jeopardize At-Will Employment

• Termination only for “cause” or “good cause”• Use of the word “permanent”• We are a family• We provide long-term job security• We treat employees fairly


Some of The Most Important Policies


Equal Employment Opportunity

• All protected categories (list them)• All employment actions• Prohibit discrimination, harassment & retaliation• Explain consequences of violations


Anti-Harassment

• Include a clearly defined complaint procedure Report to high-ranking managers Report to male or female Include additional layers of reporting


Anti-Harassment (Continued)

• Not just sex• Complaint procedure • Define prohibited acts broadly, but give examples• Comments, objects, contact


Anti-Harassment (Continued)

• No retaliation• Limited confidentiality in investigations• Non-Employees covered


Problem Solving Procedure

• List chain of command• Include a “bypass” procedure• Must be effective!


Absenteeism & Tardiness

• Notification requirements• Consequences• Automatic termination / job abandonment


Leave Policies

• Non-Medical Leaves– Bereavement– Civic Responsibilities

• Jury or witness duty• Voting

– Eligibility Duration– Military– Personal– Sick


Medical Leave (FMLA)

• Covered employees• Employee eligibility• Eligible employees get 12 weeks of:

– Job-protected– Benefits continued– Unpaid leave


Medical Leave (non-FMLA)

• Required, even if not covered by FMLA• May be a reasonable accommodation• Explains basic terms of leave

– Eligibility requirements– Reinstatement rights


Reasonable Accommodations (EEOC Guidance & Enforcement)


Recent EEOC SettlementsInflexible Leave Policies

• $20 million– no fault attendance policy

• $6.2 million– inflexible 12-month leave policy

• $4.85 million− inflexible 12-week leave policy

• $3.2 million– return to “full duty with no restrictions” policy

• $1.35 million– inflexible 12-week leave policy


Accommodation 101

• “Interactive process” requires affirmative steps: does the employee require any “reasonable accommodation” to– perform the essential functions of his or her job?– enjoy the benefits and privileges of employment?

• “Reasonable Accommodation” may include:

– unpaid leave– modified duty/reduced work schedule – telecommuting– reassignment to a vacant position


Inflexible Leave Policies

• Automatic termination upon expiration of leave = trouble

• “No fault” absence policies = trouble• No individualized assessment• No opportunity to determine if extended leave is a

reasonable accommodation

• 100% return to work policies = trouble• Need to consider modified duty and/or reduced

work schedules


Types of Accommodation

• Making facilities accessible• Job restructuring• Modified work schedules• Work-at-home arrangements• Transfer or reassignment• Leaves of absence • Acquiring/modifying equipment/devices• Adjusting/modifying exams, policies, training• Providing qualified readers or interpreters


Leave: Best Practices

• Revise inflexible leave policies

• Eliminate reference to “100% recovered” or “full duty”

• Train supervisors to recognize accommodation requests

• Engage in a dialogue with each employee who requests leave

• Ask when the employee anticipates returning to work


NLRB Enforcement

• NLRB has looked closely at employee handbooks

• Applies in union and non-union companies

• Unlawful policies discourage union participation


Social Media

“statements posted electronically…that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Employee Handbook, may be subject to discipline, up to and including termination of employment.”

Lawful Unlawful


Work Rules

“be courteous, polite and friendly”

Lawful Unlawful


Work Rules

“no one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

Lawful Unlawful


Work Rules

“off-duty employees are prohibited from entering the workplace except to conduct employer-related business”

Lawful Unlawful


Work Rules

“off-duty employees are prohibited from entering the workplace, except to attend employer-sponsored events”

Lawful Unlawful


Work Rules

“employees are prohibited from walking off the job or willfully restricting production”

Lawful Unlawful


At-Will Policies

“the at-will relationship cannot be amended, modified or altered in any way.”

Lawful Unlawful


At-Will Policies

“only the CEO or his designee has the authority to enter into an agreement that is contrary to the ‘employment at will’ relationship.”

Lawful Unlawful


Confidentiality In Workplace Investigations

“employees who disclose their participation in this internal investigation will be subject to immediate termination”

Lawful Unlawful


Social Media Policy

• Employers must weigh the risks of inappropriate on-line activity against the potential harm to employee relations if the company’s efforts are perceived as excessively intruding into an employees’ private lives

• Employers should develop a specific policy governing usage of social networking sites and train employees on the policy and appropriate use of sites


Social Media Policy

• Employer concerns:Upholding the company’s reputation in the community;Protecting confidentiality and trade secrets;Enforcing existing employment policies


Social Media Policy

• NLRB concerns:Prohibitions on protected employee communications relating

to terms and conditions of employment;Prohibitions on criticizing the company; andRequirements that employee posts be “completely accurate”


Social Media Policy – What Can I Do?

• Remind employees that on-line activities reflect the company and its service to its customers and the greater community

• Require that all information posted or published by an employee complies with existing lawful employment policies, including use of confidential and proprietary information

• Prohibit employees from defaming, harassing, or threatening co-workers

• Remind employees that on-line activities are often public and can be accessed by others


NLRB Enforcement

• Purple Communications decision in December 2014

• Employers cannot completely limit employee use of company e-mail systems on non-working time

• Employees must be able to use Company e-mail for protected concerted activities on non-working time


Tips for a Social Media Policy

• Be Specific:Target specific behaviors that violate the law or company policiesFlawed policy: Costco’s policy barring statements that harm the

Company’s reputation – employees could read it as a ban on protesting the treatment of employees

Acceptable policy: Wal-Mart’s policy limited its prohibition to comments that are malicious or obscene


Tips for a Social Media Policy

• Give Examples:Broad categories of prohibited or required conduct will draw

scrutinyGive examples not related to terms and conditions of employment

but related to business products, trade secrets, guest information, etc.

• Stay Current:Odds are, unless you’ve drafted a policy in the last few months,

it’s not current


Drugs and Alcohol

• Arizona is one of 23 states that allows the use of marijuana for certain medical purposes.

• In most states Employers remain free to implement and utilize drug-free workplace programs and policies in spite of medical use of marijuana.


Arizona Medical Marijuana Act

A. R. S. § 36-2813(B)

B. Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

1. The person’s status as a cardholder.

2. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.


Legislative “Fix” (HB 2541)

– Expands the definition of “good faith”– Defines “impairment”– Allows employers to exclude an employee from “safety-

sensitive positions”– Defines “current use of drugs”– Permits employers to use a verification system to verify

cardholder status– Expands the safe harbor provision contained in Arizona’s

drug testing statute


Expanded Definition of “Good Faith”

• No cause of action may be established against an employer for actions based on the employer’s “good faith” belief that an employee had used or possessed any drug or had an “impairment” while working, while on the employer’s premises, or during hours of employment


Cigarettes

• Smoking is one of the great controversies employers face

• Smoke break– Employee has no protected

right to take a break due to nicotine addiction


Cigarettes

Smoke-Free Arizona Act• No smoking in all public places and places of

employment – (20 feet of entrances, windows, ventilation systems)

• Exceptions– Private residences– Hotel rooms designated as Smoking– Tobacco stores– Veteran and fraternal clubs– Religious exemption– Outdoor patios (20 foot rule)– Theatrical performances


E-Cigarettes

• Currently no state law in Arizona re: e-cigarettes.

• Employers are free to create their own policies based on their beliefs as to whether or not e-cigarettes should be allowed in the workplace.


Conflict of Interest

• Moonlighting that interferes with employment

• Engaging in competitive business

• Financial interest in competing business

• Notify Company of potential conflicts


Protection of Company’sValuable Information

• Business Records• Confidential Information• Electronic Communication


Business Records

• The Company’s property• Always subject to review by management


Confidential Information

• Identify it• Take actions to protect it• Tell employees of consequences of disclosure• Retrieve it before employees leave• Remind departing employees of their obligations


Electronic Communications

• Define• Right of access by Company

– Computers are monitored

• Property rights apply– Computers & other electronic equipment are Company

property

• Acceptable and unacceptable uses


Protecting People and Property

• Inspection of Work Area• No Weapons• Safety • Unauthorized Recording (Voice/Picture/Video)• Use of Company Property• Workplace Security


Workplace Violence

• Avoiding negligent supervision/retention• Zero tolerance for violence from any source• Requirement to immediate report of threats• Statement that all threats are to be taken seriously• Even off-premises conduct can be covered• Involve law enforcement if necessary


The Ball’s In Your Court

• Benefits• Employee Pay• PTO• Work Schedule• The Company’s Image• Additional policies


Company Benefits

• Various benefits– 401(k)– Insurance

• No details of benefits• Plan documents control

– COBRA


Company Benefits (Continued)

• Employee’s pay– Payday– Direct deposit– Deductions– Release of pay checks


PTO

• Paid Holidays– Eligibility– Unapproved absences before or after Holiday– Holiday falls on weekend or during employee’s vacation

• Paid Vacation• Accrual Issues

– Probationary employees– Use it or lose it– Rollover– Payment at termination


Basic Work Rules

• Do not promise progressive discipline• Use broad, general categories• May result in discipline “up to and including immediate

termination”


The Company’s Image

• Personal appearance– Dress code– Body Piercing– Tattoos– Personal Hygiene– Work area appearance


Forget About It!

• Pre-employment• Issues that rarely arise• Issues that you don’t want to raise (i.e., access to

personnel files, exempt status)


Implementation

• Provide written notice announcing re-issuance of the handbook• Conduct meetings with employees to cover the relevant

changesKeep track of attendance at meetings (ie, sign-in sheets, etc.)

• Re-issue employee handbookAllow employees to keep a copy of the revised handbookHave employees sign Acknowledgment FormPhotocopy or retain copies of signed documents


Implementation

• Even the best handbook fails if you can’t “prove” your employees received it

• Obtain a signed acknowledgment of receipt for the handbook and all revisions

• Keep the signed acknowledgment in personnel file for at least one year after termination


Future Updates

• When the law changes• When your policies change• Annually• When you’ve run out of copies


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Final Questions?


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Thank You

● phone (602) 281-3400 presented by: shayna h. balch phone: (602) 281-3406 email:...

Documents

new year

new rules

todays webinar

handbook objectivesemployee

handbook objectivesemployer

ideal employee handbook

employment contracthandbook

important policies