2010 Legal and Finance Series: Changes you should have made to your employee handbook in 2009...
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Transcript of 2010 Legal and Finance Series: Changes you should have made to your employee handbook in 2009...
2010 Legal and Finance Series:Changes you should have made to your
employee handbook in 2009
Tuesday, February 16, 2010
POTLUCK POLICIES-Changes to Iowa Law
Ann Holden KendellDickinson, Mackaman, Tyler & Hagen, P.C.
699 Walnut Street, Suite 1600Des Moines, Iowa 50309
515.244.2600
Iowa Smokefree Air Act – all employers
Iowa Smokefree Air Act
Became effective July 1, 2008:
prohibited smoking in public places AND placed notice requirements on employers◦must communicate prohibitions to applicants AND
employees◦must communicate how to make complaints ◦statute prevents retaliation for filing complaints –
best practice is to include a prohibition on retaliation
Iowa Smokefree Air Act
Prohibitions:
Smoking in public places AND “all enclosed areas within places of
employment”◦“enclosed area” = All spaces between a floor and ceiling that
is contained on all sides by solid walls or windows, exclusive of doorways, which extend from the floor to the ceiling.
◦“place of employment” = An area under the control of an employer and includes all areas that an employee frequents during the course of employment or volunteering.
Iowa Smokefree Air Act
Practice pointers
Need to include information on prohibitions in information given to applicants
Need to add section to handbook
Iowa Civil Rights Act- employers with
4 employees or more
Iowa Civil Rights Act
Recent key amendments:
Addition of “sexual orientation” and “gender identity” to protected classes
Effective July 1, 2007
Iowa Civil Rights Act
Recent key amendments:
Iowa Wage Discrimination in Employment Act –Violation occurs when an individual is affected by application of a discriminatory pay decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
Effective July 1, 2009
Iowa Civil Rights Act
Recent key amendments:
Iowa Wage Discrimination in Employment Act (continued)
Sold as mirror to Lilly Ledbetter Fair Pay Act, but goes much further all protected classes are covered (age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability)
Iowa Civil Rights Act
Practice pointers
Change handbook language on harassment and discrimination to include “gender identity” and “sexual orientation”
Change handbook language to include pay differentials as part of prohibited discrimination
Make sure that you outline complaint procedures in handbook on all harassment and discrimination issues (& retaliation)
Helpful Policies for Union Avoidance
Danielle SmidBrownWinick
666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510
E-mail: [email protected]
What is a Union?
A business selling employees the service of “exclusive representation”
What is a Union?(continued)
A union is the sole bargaining agent for employees concerning wages, benefits and working conditions
What Issues Prompt Employees to Join
Unions?
In order of importance to employees:
1. Job Security
2. Pay and Benefits
3. Supervisory Practices
What Can an Employer Do Before Union Organizing
Takes Place?
• Adopt policy/philosophy on unions and labor relations
What Can an Employer Do Before Union Organizing
Takes Place?(continued)
• Adopt rules limiting soliciting
What Can an Employer Do Before Union Organizing
Takes Place? (continued)
• Formally/informally audit employee satisfaction
What Can an Employer Do Before Union Organizing
Takes Place? (continued)
• Improve existing communication channels
What Can an Employer Do Before Union Organizing
Takes Place? (continued)
• Establish new communication channels
What Can an Employer Do Before Union Organizing
Takes Place? (continued)
• Empower first-line supervisors
Website: www.brownwinick.comToll Free Phone Number: 1-888-282-3515
OFFICE LOCATIONS:
666 Grand Avenue, Suite 2000Des Moines, Iowa 50309-2510
Telephone: (515) 242-2400Facsimile: (515) 283-0231
616 Franklin PlacePella, Iowa 50219
Telephone: (641) 628-4513Facsimile: (641) 628-8494
©2010
Social Networking Policy Considerations
Rebecca DublinskeDickinson, Mackaman, Tyler & Hagen, P.C.(515) 246-4505
©2010
Policy Goals:
• Monitor or restrict online activities during work hours or on work computers
• Monitor or restrict certain communications that may have consequences for employer
©2010
Creation Process:Examples from other sources may not fit your needs. (marketing v. confidentiality; highly creative v. traditional)
Who drafted example policies and for what purpose?
Social networking policies require individualized attention and should be specifically tailored to the needs of each employer.
©2010
Before You Draft the Policy:
Talk to IT personnel, HR Department , department heads, and legal counsel to determine business interests, needs, goals, and expectations of what the policy needs to address.
©2010
Effect of Employees’ PersonalOnline Activities
Potential that online activities will:• Harm employer’s reputation • Disparage other employees • Disclose proprietary information• Result in vicarious liability• Otherwise violates company policy
©2010
Employees’ Online Activities
• Employment litigation often a result of employer’s exercise of discretion.• Litigation is more likely when:
• Employer deviates from standard discipline procedure, and
• Differential discipline among similarly situated
employees
©2010
Employees’ Online Activities Uniform application of
disciplinary and termination procedures can mitigate discrimination and retaliation claims. A written policy can help protect employers against claims of unfair or selective enforcement.
©2010
• If you will monitor current employees’ sites, have internal written policy governing the process before looking at social network sites.
• Who, what, when, where, why, how• Be consistent. Ad-hoc process could
easily lead to selective enforcement issues.
• Don’t use deceptive alias or others’ login information. If you can’t get access without manipulating a user or the system, stop trying.
Policy of Accessing Networking Sites
©2010
At-Work Social Networking• Communicate that while on company time, on company computers, or whenever you identify Employer, Employee should refrain from activities online that do not bring value to Employer.
•Note that social networking activities should not interfere with work.
©2010
Employee Personal Use of Company Property
• Consider the Purpose, Scope, and Pros & Cons
• Scope of allowances / prohibitions on company time & equipment
©2010
Company Information Policy
• Employees should not mention or discuss online the company’s proprietary information or trade secrets
• including comments about customers, suppliers – even if names are not used
• also including textual or visual disclosures
©2010
Considerations for Social Networking Policy
•Law always in flux• New area: socialnetworkinglawblog.com• Megan Erickson – TAI session • No policy can anticipate every issue • Goal: proactively manage risks
ADAAA Proposed Regulations:Employee Policy Considerations
Rebecca DublinskeDickinson, Mackaman, Tyler & Hagen,
P.C.(515) 246-4505
ADAAA Signed -- September 25, 2008Effective -- January 1, 2009EEOC’s Proposed Regulations issued on
Sept. 23, 2009. Final regulations expected in mid-2010.
ADAAA PurposesRestore intent of the original ADA and
overturn four U.S. Supreme Court decisions that narrowed the interpretation of the ADA
Change the focus of ADA cases to whether the Employer met its obligation to reasonably accommodate Employee rather than centering on whether the Employee is “disabled”
Reduce the standard for “substantially limits” a major life activity
Broaden the reach of “major life activities”
Definition of DisabilityRetains 3 categories
◦Having an actual physical or mental impairment that substantially limits one or more major life activities
◦Having a record of such an impairment◦Being regarded as having such an
impairment*HOWEVER - requires a broader
interpretation and application to cover more people
What Is a Disability?Yes:
Deaf and Blind Intellectual disability (mental retardation) Partial or complete missing limbs Mobility impairments requiring wheelchair Autism Cancer Cerebral Palsy Diabetes Epilepsy HIV/AIDS MS / MD Major depression, bipolar d/o; PTSD; OCD;
Schizophrenia
What Is a Disability?
Asthma HBP Learning disability (speed, ease,
time, effort, difficulty, academic success of reading, learning, thinking or concentrating)
Back or Leg impairments (standing duration, walking distance, weight lifting)
Psychiatric (time/effort to concentrate, capacity to interact, appetite)
Carpal Tunnel Syndrome (amt of pain when writing, using keyboard, how long can do manual tasks)
Common flu Sprained joint Minor gastrointestinal d/o Broken bone expected to heal
normally Common cold
Maybe: No:
Reasonable AccommodationsNo obligation to Reasonably
Accommodate a “Regarded As” Disability
Must reasonably accommodate those with an actual disability
Must reasonably accommodate those with a “record of” a disability (why or how, we’re not sure!?!)
What Can You Do Now?
Review existing employee and management policies to change any definitions of the ADAAA.Focus on Reasonable Accommodations:
a. Consider a separate reasonable accommodations policy with procedures
b. Reconsider previously denied accommodation requests in light of ADAAA’s changes
c. Revise managerial training to cover reasonable accommodations issues in more detail
d. Review and update Job Descriptions ; review the essential functions
Additional Q & A
Upcoming TAI Events•Legal and Finance Clinic: Employee dishonesty in times of recession: Safeguards and proper handling (March 16, 2010)
•2010 Prometheus Awards (April 6, 2010)
•Legal and Finance Clinic: Legal implications of social media in the workplace (April 20, 2010)
•The Heartland GreenUp IT Symposium & Expo (May 5, 2010)