By Brooke T. Iley and Stephanie Gantman Kaplan
Employer policies and agreements have recently come under fire.
From governmental agency guidance and enforcement lawsuits, to state and local laws mandating employer action, employers now more than ever need to be smart in drafting and implementing policies and agreements.
How do employers go about doing this? Knowing the do’s and don’ts is the first step to success.
Test yourself to see if you can correctly answer the below 10 questions and learn more about the developing law governing employer policies and procedures.
1. Should employers have an anti-bullying policy?
Yes. While it is true that the legal definition of bullying is still evolving, and to date anti-bullying laws are by in large proposed (not enacted) the implication of the increased dialogue about bullying is nonetheless clear.
Employers’ obligations are expanding well beyond protecting employees against discrimination and harassment. Stay ahead of this issue by considering enacting a thoughtful policy promoting respect, prohibiting bullying behavior and establishing appropriate reporting procedures.
2. How does the Security and Exchange Commission’s (SEC) recent whistleblower enforcement action against KBR impact confidentiality in policies and agreements?
Since the settlement of the SEC’s enforcement action against a publicly-traded company, such employers must keep in mind that all policies, procedures and agreements with confidentiality provisions must not explicitly or implicitly prohibit communications with the SEC.
Publicly-traded employers should therefore consult with counsel to draft compliant language for their specific needs. In doing so, employers should consider expressly stating that the confidentiality provision is not intended to prohibit SEC communications.
3. Is there other guidance about confidentiality provisions that all employers should know about?
Yes. In March 2015, the National Labor Relations Board (NLRB) issued a report providing that confidentiality policies cannot prohibit:
- Employee discussions of the terms and conditions of employment (i.e. wages, hours, or workplace complaints); or,
- Broad bans on discussing “employee” or “personnel” information.
4. Is there any reason to update sick leave and/or PTO policies?
Yes. We are seeing increased regulation on the state and local level about mandatory paid sick leave laws.
Notably, each of these laws vary in terms of which employers are covered, which employees are eligible, what exceptions apply, and which conditions must be covered.
What does this mean for an employers’ policies? Potentially, that a sick leave or PTO policy could conflict with a recently enacted law in a jurisdiction where the employer operates.
This is a particularly tricky issue for employers operating in multiple states, or even multiple localities. Employers must stay up to date on the law in the places where they operate and carefully review their policies to ensure compliance.
5. Can an employer have a policy forbidding employees from posting anything about work on social media?
No. Such a policy would violate the National Labor Relations Act, as interpreted by the NLRB, because employees must be permitted to discuss certain topics that considered protected concerted activities, such as wage discussions (as referenced in response to Question 3).
More specific policies, however, such as prohibiting the posting of an employer’s confidential, proprietary or trade secret information on social media are permissible.
6. Is it true that employers can tell employees how to dress?
Not always. Recently, the Equal Employment Opportunity Commission (EEOC) has had an increased focus on religious accommodations, and in June 2015 the U.S. Supreme Court ruled in favor of the EEOC in EEOC v. Abercrombie & Fitch Stores, Inc., on religious garb in the workplace issue.
How does the EEOC’s initiatives and the Court’s ruling impact employer dress codes?
First, employers must be wary of denying religious accommodations to employees seeking exceptions to garb and grooming policies. And, employers need to know that they can be liable for making employment related decisions based on even a suspicion of a need for a religious accommodation.
The bottom line is, when it comes to issues of religious accommodations for appearance-related policies, proceed with caution.
7. Should an employer consider having a pregnancy accommodation policy?
Absolutely. In light of Young v. United Parcel Service Inc., a June 2015 Supreme Court decision, and a growing number of relevant state laws, employers should carefully assess their accommodation policies and practices and ascertain which employees are eligible for such policies.
While many questions are left unanswered about pregnancy accommodations at this time, it is clear that employers who exclude pregnant employees from engaging in meaningful discussion about an accommodation put themselves at significant risk.
8. Now that gay marriage is legal in all 50 states, what changes need to be made to employer policies?
The most immediate impact of the historic Supreme Court decision legalizing same-sex marriage for employers’ policies will be on domestic partner policies. Historically, employers adopted domestic partner policies to reflect the fact that certain employees could not get married and employers wanted to extend benefits to those employees and their partners to ensure equal treatment.
Now that everyone has the right to marry in every state, employers may reconsider and ultimately eliminate such policies. The important takeaway for employers today is that same-sex marriage is now legal in all jurisdictions, and employers therefore must treat such marriages the same way as heterosexual marriages in their policies.
Another issue likely on the horizon that employers developing policies should keep in mind is discrimination or harassment on the basis of being lesbian, gay, bi-sexual or transgender (LGBT). While some state laws prohibit discrimination on the basis of sexual orientation, current federal law does not.
Specifically, Title VII prohibits discrimination on the basis of various protected characteristics, including sex – but not sexual orientation. The EEOC nonetheless recently ruled that complaints of discrimination on the basis of sexual orientation are sex discrimination claims under Title VII.
While this decision is not binding on courts, and is limited to a federal sector matter, a court could reach a similar conclusion. Not to mention that given recent developments, the legislature may be reinvigorated to proceed with a proposed federal law protecting against discrimination on the basis of sexual orientation in employment and other areas, which has been stalled in Congress for many years.
As this issue evolves, employers must be careful in drafting, implementing and discussing policies, procedures and trainings related to discrimination and harassment.
9. Can an employer ban the use of photography or recordings at work?
No, unless the ban is limited.
According to guidance from the EEOC, total bans on photograph or recordings are overbroad because they could be read to prohibit taking a picture or recording on non-work time or in furtherance of a protected concerted activity (as discussed in response to Questions 3 and 5). As such, employers with policies banning photographs or recordings would be wise to appropriately limit such rules to avoid a challenge as to the breadth of the policy.
10. Can an employer have a policy forbidding the use of marijuana by an employee at any time?
Likely yes. While you make think this question has a simple answer, it actually depends where the employer operates.
Let’s start with the easy scenario. Marijuana is currently illegal under federal law. This means, for employers operating in states that have not legalized marijuana for some or all purposes, an employer policy forbidding the use of an illegal substance (i.e. marijuana) is certainly permissible.
Now, for the tougher question. What about employers operating in states that have decriminalized or legalized marijuana for medicinal or all purposes? We can’t say for sure because the law is still developing, but one recent Colorado Supreme Court decision from June 2015, Coates v. Dish Network suggests policies banning the use of marijuana are legal.
In Coates, the court ruled that employers can fire employees for drug use, even state-licensed medical marijuana use outside of work hours. The court reasoned that medical marijuana is not lawful under federal law, and therefore is not covered by Colorado’s discrimination statute which protects “lawful activity.”
It is of note that because the Colorado court relied on a Colorado statute, it is not clear how courts in other states that have legalized marijuana would rule. So, what does this mean for employers with polices that operate in states that have legalized marijuana?
Keep an eye out as the law develops, but, for the moment, applicable authority suggests you can ban employees from using marijuana. That being said, consider if the company would actually enforce such a policy, and, if so, how that would work.
Employers operating in states with legalized marijuana may be better off limiting such a prohibition on marijuana use to working time and/or on company property, depending on the particular industry and job functions of the employees.