Five Workplace Policies That Trending Caselaw Suggests Employers Should Include In Their Employee Handbook

Most employers are aware of the traditional “must have” policies that should be included in every employee handbook.  For example, all employers should have an equal employment opportunity and anti-harassment policy and, in most states, an at-will employment statement.  Likewise, employers with fifty or more employees must have a written FMLA policy.  There are, however, a number of policies that are sometimes overlooked by employers when they are updating an employee handbook and should not be according to trending caselaw.  The following discusses five of those policies and why you should consider including them in your employee handbook the next time you make an update:

  1. (Separate) Policy on Filing Internal Complaints

 One of the significant takeaways from the #MeToo movement is that employers must have a robust internal complaint procedure to report discrimination, harassment, and retaliation.  This is important not only in identifying and eradicating these behaviors from the workplace, but also in defending against discrimination, harassment and retaliation claims (especially if the “affirmative defense” is available).  To meet this heightened expectation, many employers are making their complaint procedure a separate, standalone policy, instead of just combining it with an existing anti-harassment or equal employment opportunity policy.  It makes it easier to publish to employees and it is easier for an employee to find in the employee handbook.

  1. (Separate) Investigation Policy

 A second lesson learned from the #MeToo movement is the necessity of having a well thought out process for investigating complaints of discrimination, harassment, and retaliation.  This is important both to demonstrate to employees that you are serious about addressing these complaints, but also to ensure that you are addressing each complaint in a consistent and transparent manner.  An investigation policy can also be very helpful in litigation where the trend is to put the employer’s investigation process on trial.  As a result of these considerations, many employers are putting pen to paper and creating or updating existing investigation protocols.  The protocols or appropriate portions of them are then incorporated into a separate investigation policy available to employees.  By making this a separate policy and publishing it to employees, employers demonstrate their commitment to the process and set appropriate expectations for employees.

  1. Former Employment Policy

 For employers in industries where non-competition agreements are common, it has proven extremely helpful to have a written policy that reminds employees of their obligations to former employers, especially if the new employer gets brought in to a non-competition dispute.  Such policies typically require employees (i) to acknowledge that they are under no restriction, contractual or otherwise, with a former employer that would prevent them from accepting or continuing employment, (ii) to refrain from using or disclosing the trade secrets or confidential information of a former employer in carrying out their assigned duties, and, in some cases, (iii) to acknowledge that they have returned all trade secrets and confidential information in their possession to the former employer.

  1. Bring Your Own Device (BYOD) Policy

 More and more, employers are allowing employees to use their own smartphones, tablets, laptops, and other devices in (i) carrying out their assigned duties, (ii) communicating with co-workers and supervisors on work matters, and (iii) accessing company resources for work purposes via remote or cloud access.  If employers are going to allow employees to use their own devices for one or all of these purposes, it is vitally important to have policies in place to protect the employer’s assets (e.g., theft, malicious applications, and viruses), to set reasonable limits on the appropriate use of such devices (e.g., anti-discrimination, after hours use, confidential material), and to set expectations for access, retention, inspection, and turnover of any company information stored on a person device (e.g., post-employment return of company property, litigation holds, and internal investigations).

  1. Off-the-Clock Policy

 If you do not have a clear and direct off-the-clock policy or statement in your employee handbook, you need one.  In addition to being a best practice from an HR perspective, off-the-clock policies are often critical in defending against class certification in FLSA off-the-clock lawsuits.  For example, in a recent off-the-clock case against Bank of America brought by a putative class of call center workers, the district court, in denying class/conditional certification, relied heavily on evidence showing the bank’s statewide (written) policy required workers to record all the time they worked.  Avoiding certification would have been much more difficult in the absence of this written policy.

The Bottom Line for Employers:  Having an up-to-date employee handbook that reflects recent legal trends and incorporates changes in the way employees use technology can pay big dividends both in the workplace and in the courtroom.  If your company needs assistance in drafting employment policies, the lawyers at Muskat, Mahony & Devine, LLP are ready to help.