SAY WHAT?!?! HOW YOUR HANDBOOK DIFFERS FROM THE LAW AND IS IT HELPING OR HURTING YOU
October 5-8, 2014Fort Worth Convention Center
An employee handbook is NOT REQUIRED
under any Federal or state (Texas) law.
Tribune Co. CEO Sam Zell’s Handbook
• Reduced handbook from 11,519 words to 3,663
• Uses plain language and no legalese• Opening Language:
– Rule #1: Use your best judgment.– Rule #2: See Rule 1.
Sample Tribune Co. Handbook LanguageDiscrimination based on gender, age, race, religion, national origin, marital status, sexual orientation, disability or any other characteristic not related to performance,
ability or attitude, protected by federal or state law, or not protected (such as inability to tell a joke, the occasional poor wardrobe choice or bad hair day), is strictly
prohibited.-----------------------------------------------------
Making the building too hot, banging on trash can lids or loud bagpipe music are annoyances you can complain about, but such actions don't constitute harassment on
the basis of protected characteristics.------------------------------------------------------
If you use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated. See Rule 1. Coming to work drunk is bad
judgment.
If you do not use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated.
So if I’m not legally required to have a handbook and there are
companies that don’t have them, do I need one?
Pros and Cons of HandbooksPROS
• Clearly stated expectations of employees
• Uniformity of policies• Helpful in defeating UC
claims• Helpful in defending
lawsuits• Easiest way to disseminate
information to employees
CONS
• Inflexibility• Failure to apply/utilize
policies• Employee dissatisfaction
with imprecise or incomplete language
• Creating lawsuits
So do I need a handbook or what?
Yes, but…
Only include those policies you actually need and intend to follow.
AND…
Make sure your handbook is compliant with the law.
Employee Threshold Levels for Employment-Related Laws
• Race discrimination (federal)– 1 employee (42 U.S.C. 1981)
• ADEA (federal)– 20 employees
• All other forms of discrimination (state and federal)– 15 employees
• Texas Payday Law– 1 employee
• FLSA– 1 employee (engaged in commerce)
• FMLA– 50 employees
Anti-Discrimination Policies
The employer is an equal opportunity employer. The employer will not
discriminate and will take measures to ensure against discrimination in
employment, recruitment, advertisements for employment,
compensation, termination, promotions, and other conditions of employment
against any employee or job applicant on the bases of race, color, age, disability, national origin, or sex.
The employer is an equal opportunity employer. The employer will not
discriminate and will take measures to ensure against discrimination in
employment, recruitment, advertisements for employment,
compensation, termination, promotions, and other conditions of employment
against any employee or job applicant on the bases of race, color, age,
disability, national origin, sex, or sexual orientation.
Sexual Orientation Discrimination• Not a protected category under federal or Texas
state law– Despite the fact a Huffington Post poll found that 62% of
those polled thought it was against federal law to fire someone for being gay or lesbian
• Protected category in Fort Worth– City Ordinance 17-67 (First Texas city, 2000)
• Protected category in Dallas– City Ordinance 46-6
• Protected category in Austin, Houston (as of 2014), and San Antonio
EEO and Non-Discrimination policies MUST be provided to employees via a handbook or
policy statement or posted notice
The NLRB and Your Handbook
Employees are prohibited from discussing their salary or wage levels and company benefits with other
employees. Such information is confidential and may not be discussed in the workplace. Any employee
violating this policy will be considered to have committed a breach of confidentiality and will be subject to disciplinary action, up to and possibly
including termination of employment.
Employees are prohibited from making negative comments about their employer on social media,
including in blogs and online forums.
Employee Discussions and Social Media Policies
• Section 7 of the NLRB gives employees right to engage in concerted activities, including discussing terms and conditions of employment with each other– Outlaws blanket prohibitions against employees discussing
company business or their jobs online on their own time– This includes discussions about compensation and benefits
Employee Discussions and Social Media Policies
• Employers still can prohibit discussions that take place when employees should be working– However, do not single out pay discussions
• Does not protect employee discussions if the compensation and benefits information was obtained improperly
• “Personnel information and documents” still a violation– Flex Frac Logistics LLC v. NLRB
Leave Policies
Family Medical Leave Act (FMLA)• If you are subject to FMLA (50 employees or more), it is
one policy that MUST be provided to employees via a handbook or policy statement or posted notice
• If you are not subject to FMLA, you could be required to extend FMLA leave anyway if you promise it and equitable estoppel conditions are satisfied– Minard v. ITC Deltacom Communications
• Be wary of inflexible leave policies that call for termination upon exhaustion of FMLA leave– EEOC taking ADAAA enforcement action
Vacation and Sick Leave• No Texas or federal law requires private employers
to provide paid or unpaid leave of any kind– Absent FMLA leave or ADA/ADAAA reasonable
accommodation leave
• No Texas or federal law requires payouts of accrued but unused paid leave– However, see Texas Payday Law
Texas Payday Law• Written promises regarding compensation, including
paid leave and payout of accrued but unused paid leave, will be enforced as written– Unenforceable under the Texas Payday Law if unwritten or
silent
• Applies to vacation pay, sick leave pay, parental leave pay, holiday pay, and severance pay– All considered “wages” under Texas Payday Law
Work Time Policies
Part-Time/Full-Time Status• No Texas or federal law defining what constitutes
part-time or full-time status• Perfectly legal to have one set of benefits (or none at
all) for part-time and a different set of benefits for full-time– Although certain laws may prescribe hours thresholds for
eligibility despite employer classifications• i.e. ERISA (retirement/pension) and health benefits
Work Schedules• No general Texas or Federal law limiting the number
of hours that an employee can work in any given day– Exceptions related to certain industries, teenage workers,
collective bargaining agreements
• Overtime can be required (as long as it is properly compensated)
Breaks• No Texas or federal law requires employees to give breaks
during the workday– If given, however, federal regulations apply
• i.e. 20 minutes or less are compensable, meal breaks not compensable if at least 30 minutes and employee is “completely relieved from duty for the purpose of eating a regular meal”
• One exception: 2010 health care reform law– FLSA now requires employers to allow reasonable break times
for a nursing mother to express breast milk during first year following birth of child
– Do not have to be paid– Only apply to non-exempt employees– Employers with less than 50 employees are exempt if break
would be undue hardship
Wage Deduction Policies
General Rules• Under Texas Payday Law, all deductions from an employee’s
paycheck must be specifically authorized in writing– Except payroll taxes, court-ordered garnishments, and other
deduction req’d by law or specifically authorized by statute• Deductions which can drop an employee’s pay below minimum
wage:– Wage overpayments– Employee contributions for health insurance & retirement plans– Loans and wage advances– Union dues– Court ordered garnishments and statutorily required attachments– Cash shortages due to misappropriation (employer bears burden)
• Not permissible for ordinary negligence or losses due to damage, destruction, or loss of equipment
Company Issued Credit Cards• Purchases of items or services for personal use can
be considered loans or wage advances– Can result in deductions below minimum wage
• Losses due to unnecessary or negligent purchases of non-personal items cannot result in deductions below minimum wage
• All must be authorized in writing by employee
Drugs in the Workplace Policies
Drug Testing• No Texas state law or federal law prohibiting or
limiting private employers’ right to have drug and alcohol testing policies– Be aware of discrimination/ADAAA concerns– So employees can be fired for refusing to sign policy or for refusing
drug test or refusing search– Legal to test some, but not all employees– Pre-employment testing at any stage OK (not a medical exam under
the ADAAA)• Can require applicant to pay cost
• Absent specific industries or laws, no general Texas state or federal law requiring drug testing– For UC misconduct, must show policy, acknowledged receipt,
evidence of consent to testing, chain of custody, test documentation
Employee Privacy Policies
Must let employees know they have no expectation of privacy in their use of
company premises, facilities, or resources and are subject to monitoring at all times.
Employee Use of Computers, Internet, E-mail, and Telephones
• Stengart v. Loving Care Agency (NJ Sup. Court)– Invasion of employee’s privacy where policy was vague
regarding types of e-mails covered (personal vs. work) and did not state use would be subject to monitoring
• Employers can record telephone calls but must inform employees that monitoring may be taking place– Employers cannot continue listening to a telephone call
once the employer has established the call regards a private matter
• But employee can be disciplined
Company Facilities
• K-Mart Corp v. Trotti– Employer violated employee’s right to privacy after
searching locker where employee used her own lock and employer didn’t require employee give it the combination
• Cannot require employees to submit to polygraph test– Except those reasonably suspected of involvement in a
workplace incident that resulted in specific economic loss or injury to employer
Reference Check Policies
Reference Checks• No Texas state or federal law that limits references
to dates of employment, last position held, and last salary– That is a best practice misconception
• Texas law protects employers from defamation lawsuits based on job references as long as employer does not knowingly report false information– AKA…unless “the information disclosed was known by that
employer to be false at the time the disclosure was made or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed”
Termination Policies
Terminations• No Texas state or federal law requires advance
notice of termination• No Texas state or federal law requires an
explanation of reason for termination– EXCEPT: Fair Credit Reporting Act
• No Texas state or federal law requires written notice of termination– EXCEPT: FCRA and WARN
• “Job Abandonment” defined by each employer
Miscellaneous
Miscellaneous• At-will employment statements coupled with
acknowledgements that include language such as “I agree to be bound by this handbook” could be interpreted as interfering with employees’ right to unionize– Better to have short and simple “I acknowledge receipt of
the handbook.”
• Be wary of confidential information policies as they may violate NLRB concerted activity protections
• Be careful with dress codes– Could implicate discrimination concerns
So what does all this mean?
There is No One-Size-Fits-All Handbook
• Different companies need different handbooks
• Some companies may even need different handbooks for different parts of their workforce
Create a More Valuable Handbook• Give a rationale for every policy and guideline in your
handbook
• Change from a scolding or “Thou shalt not…” mode to a friendly mode
• Be clear, concise, and straightforward in your policies and policy language
• Don’t be afraid of personality
• Only include those “must” policies
• Don’t just trust your employees to read the handbook, discuss it in detail with them
QUESTIONS?
Dustin A. Paschal13601 Preston Road, Suite W870
Dallas, Texas 75240www.SimonPaschal.com
[email protected](972) 893-9341
Please remember to completethe session evaluation
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