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Tips for Handbook Review

November 5, 2018

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Tips for Handbook Review

November 5, 2018

Authored by: Christy Phanthavong

It’s that time of year when human resources departments turn their attention to reviewing and updating their employee handbooks for the upcoming year.  Below are some things to consider when updating your handbook:

  • Updates to federal laws – Have any applicable federal laws or regulations been changed, or any court or agency opinions issued that impact your policies?
  • Updates to state or local laws – Similarly, have any applicable state laws or regulations been changed?
  • State law addenda – Does a “one-size fits all” handbook work for your company, or does your company footprint require state law addenda? Has your company recently expanded into new locations?
  • Keeping up with the times – Unfortunately, policies relating to safety, security, emergency plans, emergency contact information, etc. are becoming increasingly necessary and important.
  • Introduction – Does your statement describing your company, its history and philosophy, etc. need refreshing or updating?
  • Policies v. Practices – Is your handbook keeping up with your actual practices?
  • Cross-references – Are there new and separate company policies (e.g., Code of Conduct; global policies) that should be cross-referenced in the handbook?
  • Consistency with separate policies – Do you have separate policies (such as a stand-alone reaffirmation of a

On or Off? What to Do with Email When the Employee Is on FMLA Leave.

September 21, 2018

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When an employee goes out on continuous (not intermittent) leave under the Family and Medical Leave Act (or analogous state law), the employer must decide whether to turn off the employee’s email access during the leave.  If the employer has a standard practice that applies to other comparable leaves of absence, then the employer should follow that practice for FMLA leave as well.  But if the employer has no existing practice, what practice should it adopt?

On the one hand, employees should not be expected to work while they are on FMLA leave and, generally, should not work.  Turning off the email access demonstrates the employer’s seriousness about compliance with this principle, precludes a one-off supervisor ignoring this principle and asking the employee to do something, and prevents the employee from ignoring this expectation and instead doing work (and making a claim later that he or she is entitled to pay and/or should not have had certain hours counted against the employee’s FMLA entitlement).

On the other hand, employers are permitted to communicate with employees while they are on leave, and may even ask employees on occasion to help briefly with something (like providing a summary of the status of

FMLA-Related Updates from the DOL: New Opinion Letters and (Kind of) New Forms

The U.S. Department of Labor (“DOL”) recently released two new opinion letters relating to the Family and Medical Leave Act (“FMLA”), which provides eligible employees the right to unpaid, job-protected leave for certain family and medical reasons.  The DOL also issued “new” forms relating to FMLA leave, which should be used on a going-forward basis.

The full opinion letters are available here and here, and the new forms are available here.

Organ Donors

In the first opinion letter, the DOL addressed the question of whether leave resulting from organ donation, including post-operative treatment, could qualify for FMLA leave.  The brief answer:  Yes, so long as the need for leave meets the FMLA’s definition of serious health condition.  An employee’s organ donation can qualify as a serious health condition when it involves “inpatient care” or “continuing treatment.” See 29 C.F.R. §§ 825.114, .115. And, since an organ donation would qualify as a serious health condition whenever it results in an overnight stay in a hospital – which is commonly involved in such donation – it is likely that the FMLA would apply.

Importantly, the reason for the organ donation – e.g., the fact that the organ donor is

Tips For Drafting Employee Handbooks – Tip #6: Requiring Acknowledgement Forms

This article is the last part of a six-part series.   The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #6 discusses why it is helpful for an employer to require its employees to sign employee handbook acknowledgement forms.

Tip #6: Acknowledgment Forms

In addition to disseminating the employee handbook to all employees, employers should require each employee to sign a form acknowledging receipt of the employee handbook and the responsibility to review the same.  Signed acknowledgment forms should be maintained in employee personnel files.  Once this has been done,

Tips For Drafting Employee Handbooks – Tip #5: Updating Handbooks to Address Changes in the Legal Landscape

This article is part five in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #5 focuses on the importance of consistently updating employee handbooks.

Tip #5: Updating Handbooks to Address Changes in the Legal Landscape

An employee handbook can only reduce potential liability if the policies therein are legally compliant.  Accordingly, it pays to review your handbook periodically to ensure that your policies are up to date.

For example, multi-state employers need to be vigilant about ever-changing state-specific (and even city-specific) obligations.  Current hot topics

Tips For Drafting Employee Handbooks – Tip #4: Avoiding Invasion of Privacy Claims

This article is part four in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #4 addresses how including certain information in an employee handbook may help an employer defend against invasion of privacy claims.

Tip #4: Avoiding Invasion of Privacy Claims

An employer’s investigation of an employee’s potential misconduct can give rise to various claims relating to invasion of privacy.  Employer investigations can take many forms, from physically searching an employee’s desk, locker, or automobile following a complaint of stolen property, to retrieving an alleged harasser’s emails and voicemails while investigating a sexual harassment complaint, to drug and alcohol testing following a workplace accident.  Privacy laws

Tips For Drafting Employee Handbooks – Tip #3: Avoiding Breach of Contract Claims

This article is part three in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #3 explains how including certain language in an employee handbook may help an employer to defend breach of contract claims.

Tip #3: Avoiding Breach of Contract Claims

It is not difficult to form a common law contract.  Typically, all that is needed is an offer, an acceptance, and consideration.  In most jurisdictions, an employee’s acceptance of employment or continued employment following receipt of an employee handbook can satisfy both the acceptance and the consideration elements of contract formation.  This leaves only the offer prong to be satisfied, and employees and the plaintiffs’

Tips For Drafting Employee Handbooks – Tip #2: The Importance of Equal Employment Opportunity and Harassment Policies

This article is part two in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #2 addresses how equal employment opportunity and harassment policies are especially beneficial to include in an employee handbook.

Tip #2: The Importance of Equal Employment Opportunity and Harassment Policies

The U.S. Supreme Court has held that an employer’s implementation of an anti-discrimination/anti-retaliation policy can be raised as an affirmative defense to a claim for punitive damages.[1]  The U.S. Supreme Court also has ruled that an employer’s written anti-harassment policy with an effective complaint reporting procedure can support an affirmative defense to certain types of harassment claims.[2]  Thus, employers

Tips For Drafting Employee Handbooks – Tip #1: Determining the Appropriate Scope and Length

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.

This article is part one of a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #1 examines factors an employer should consider when determining the appropriate scope and length for an employee handbook.

Tip #1: Determining the Appropriate Scope and Length

There are different schools of thought when it comes to deciding what policies to include in employee handbooks.  Some employers prefer to have a comprehensive employee handbook containing written policies governing virtually all aspects of the employment relationship, while others take the “less is more” approach.  There are pros and cons to each.  A more comprehensive employee handbook helps to ensure consistency in the administration

ADA Does Not Require Employers to Provide Multi-Month Leave Beyond Expiration of FMLA Leave – Seventh Circuit

This week the 7th Circuit Court of Appeals issued a decision helpful to employers grappling with whether they must extend an employee’s time off following the expiration of Family and Medical Leave Act (FMLA) leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).  See Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir., Sept. 20, 2017).

In Severson, the court found that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”  Plaintiff, Severson, had a physically demanding job working for a fabricator of retail display fixtures.  Severson took twelve weeks of FMLA leave due to serious back pain.  During his leave, he scheduled back surgery (to occur on the last day of his FMLA leave), and requested an additional three months of leave.  Defendant, Heartland, denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work.  Instead, Severson sued, alleging disability discrimination.

In affirming summary judgment in favor of the employer, the 7th Circuit noted that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”  Following its earlier decision in

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