Although not legally required, employee handbooks can be valuable resources, providing employees with vital information at their fingertips from your company’s values, to its standard operating procedures, expectations for employee conduct, working conditions, dress code, and rules regarding post-employment competition.
In addition to setting clear expectations, the employee handbook is also essential as it can help protect an employer from potential liability . As helpful as an employee handbook may be to employees, the policies within the handbook also assist employers by providing the roadmap for ethical and legal treatment of employees. It helps protect employers from potential lawsuits relating to harassment, wrongful termination, and discrimination while setting a code of conduct for appropriate behavior and professional expectations.
It bears mentioning, however, that the employee handbook is not a binding employment contract. The handbook should supplement – not replace – the formal employment agreement or offer letter and the confidentiality, trade secrets and non-solicitation and non-compete agreement you give to employees to sign when employment starts.
Solid, formal employment agreements should be a foundation of every business and the earlier you have that in place, the more protected your business and confidential information will be. The employee handbook is then meant to supplement these agreements and is a place to provide essential information about attendance and performance expectations, hours of operation, fringe benefits, and most importantly, policies relative to anti-harassment, anti-discrimination and a committment to an inclusive workplace. These, among others, are key areas employers and small business should focus on in 2021.
2021 Updates to Consider
Many employers are still struggling to recover from the effects of the Coronavirus pandemic on their organizations. As such, they likely had little to no time to update their employee handbooks. But with the Biden Administration enacting sweeping changes in the business and economic landscape, as well as a substantially altered working environment nationwide, it is essential for businesses to review and update the policies and procedures in the employee handbook – and if you don’t have one yet, now is the time to get one in place!
The FFCRA and Other COVID-19-Related Rules
The Families First Coronavirus Response Act, or (FFCRA), expired on December 31 of 2020. However, under the Consolidated Appropriations Act, 2021, the FFCRA’s refundable tax credits apply until March 31 of this year. This Act will apply to covered employers that provide expanded family and medical leave and/or emergency paid sick leave.
As such, organizations that continue to provide paid leave to their employees under the FFCRA or that are subject to state and local COVID-19 laws, may want to separate these policies from their employee handbooks. These recent updates are temporary in nature (and subject to change by the Administration as the pandemic situation evolves), so including them in the handbook will only require a subsequent revision.
Workplace Health and Safety Policies
Workplace health and safety concerns appear to be a priority for the Biden Administration. On January 21 of this year, President Biden issued the Executive Order on Protecting Worker Health and Safety, which requires OSHA to “consider whether any emergency temporary standards on COVID-19 … are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021.”
In accordance with this order, employers may want to consider addressing workplace safety and health in their handbooks – not just as they relate to COVID-19, but in general. The pandemic has thrust safety and health to the forefront of employee concerns, and this trend is unlikely to pass any time soon. As such, making these provisions a permanent part of the handbook may serve companies well in the long-term.
Additionally, employers may consider implementing safety and health protocols that include information about employee responsibility to work safely, follow all relevant safety and health procedures, and report potential hazards as well as any work-related accidents, injuries, and illnesses.
The NLRB and Handbook Policies
The National Labor Relations Board (NLRB) is expected to remain under Republican control throughout the summer. If and when Democrats reclaim a majority, however, they may seek to repeal the employer-friendly NLRB policies issued under the Trump Administration and move back toward the Obama Administration’s more employee-friendly policies – specifically, the practice of scrutinizing handbook policies under the National Labor Relations Act.
Hammer Law will be keeping an eye on new NLRB decisions in key areas such as social media usage and monitoring, electronic communications, employee dress code, conflicts of interest, and confidentiality policies to help ensure businesses and employers can ensure compliance with any changes.
Wage and Hour Policies
The Coronavirus pandemic has significantly impacted the way the workplace works as many employees now work from. This admittedly makes it difficult for supervisors to observe employee conduct while on the clock. Timekeeping procedures have become increasingly important and employers may need to update their timekeeping policies and procedures to ensure nonexempt employees are accurately reporting their hours and being paid for all time worked. Employers should emphasize that employees should only work during normal business hours and must secure advance approval before working outside of those hours to avoid significant overtime expenditures.
Additionally, it will help employees understand what approval, if any, they need to seek in order to work overtime. Employers might want to consider enacting policies that require employees to thoroughly review their time records to ensure accuracy, honesty, and compliance and this is a key area where revisions are taking place in 2021.
Should Some Items Be Kept Separate From the Employee Handbook?
As noted above, employers should consider keeping employment contracts and other legally binding instruments, like arbitration clauses and non-compete, non-solicitation, confidentiality and non-disclosure agreements, separate from the employee handbook. This approach can strengthen the protection afforded to the employer, as these are separately signed, legally binding documents that should then be supplemented by the provisions in the employee handbook.
The Importance of a Disclaimer
To bolster this perception, employers should strongly consider including a conspicuous disclaimer at the beginning of their handbooks. This disclaimer should specify that the handbook is not a binding contract, that the employment relationship is at-will, and that the handbook is not intended to provide an exhaustive list of employer policies and procedures. Employers should always seek the guidance of an employment attorney when deciding how to best regulate employee conduct. This also includes having a lawyer review the handbook to ensure its consistency with newly enacted federal policies and decisions.
Hammer Law PLLC is not a litigation firm. We do not handle lawsuits, cases, or claims against employers. If you are seeking legal assistance in this area, we will be unable to assist you.