Wyche at Work: March 2014 Employment Update

Prepared by Ted Gentry
March 2014

Employee Handbooks and Manuals Part III: Essential Provisions

In Part II of our series on employee handbooks, Wyche at Work discussed a critical aspect of the first page of any handbook: a conspicuous and correctly formatted disclaimer stating that the handbook does not create a contract for employment. This month’s handbook topic deals with other policies which employers should, for one reason or another, consider essential for their handbooks.  These policies should be part of any employment handbook, manual, or policy guide that employers publish to their employees.

Employment At-Will. Although not technically required by law to maintain an at-will employment relationship, companies should include an at-will employment policy to remind employees that the company may terminate the employment relationship at any time, for any reason or no reason. A discrete policy will help reinforce the existence of the at-will employment relationship and can be used to refute arguments that a company, through the employee handbook or otherwise, created a contract for employment.  .

Equal Employment Opportunity. An equal employment opportunity policy should, at a minimum, set out a company’s commitment to comply with any and all applicable anti-discrimination laws. Like discrete at-will policies, EEO policies are not legally mandated. However, an EEO policy is extremely useful in establishing that an employer cares about and complies with EEO laws, which can blunt the impact of a discrimination claim. Accordingly, employers should treat such policies as a “must” for any handbook.

Non-Harassment and Non-Discrimination Policy. Non-harassment and Non-Discrimination policies prohibiting adverse conduct against employees who are in legally (or other) protected categories are related to EEO policies. These policies should set forth a goal of non-harassment and non-discrimination and further state that the company will not retaliate against employees who – in good faith – report violations.  It is essential that these policies also provide a clear complaint or grievance procedure (with alternative avenues to bring complaints) and set forth the potential consequences for violation of these policies. Non-harassment policies are not absolutely legally required in a handbook, but they are critical to establishing a defense to claims of harassment and discrimination. Certain affirmative defenses that can limit or reduce legal exposure from an allegation of harassment are available to employers that adopt, publish, and follow these policies, train their workforce on these policies, and take corrective action when these policies are violated.

Family and Medical Leave. Any employee handbook adopted by an employer subject to the Family and Medical Leave Act (generally, 50 employees in a 75-mile radius) must, by federal regulation, contain a policy explaining the FMLA and providing information on how to file complaints for violations of the FMLA. Furthermore, the policy must also contain information on employees’ rights and responsibilities under the FMLA. The policy must contain, at a minimum, the information included in the notice which the Department of Labor requires all covered employers to post in the workplace.

Hours and Payment of Wages. The South Carolina Payment of Wages Act requires companies to notify employees of, among other things, the employee’s normal hours and the time and place of payment both (i) at the time of hire and (ii) upon making any changes to such policies. As employee handbooks are normally distributed at the time of hire and should be updated to reflect changes in workplace policies, an hours and payment of wages policy can help companies meet these notice obligations (though other terms should be conveyed to employees in writing upon hire or changes in the terms of employment).

Employee Acknowledgment. Employee handbooks should contain a signature line and employee acknowledgment (in South Carolina, as we discussed last month, the at-will disclaimer acknowledgment needs to be on the first page). An acknowledgement is evidentiary proof that an employee affirmatively received a handbook. Finally, employers should retain signed copies of the acknowledgments in each employee’s personnel file.

Before distributing a newly created or revised employee handbook, employers should make sure that their handbook contains these certain essential policies. As mentioned above, failure to do so may expose the employer to adverse legal consequences. Please let us know if you have any questions about drafting or tailoring any of your company’s handbook policies.

Next month Wyche at Work will continue an examination of employee handbooks as we tackle other policies that handbooks should contain as a “best practice”.

Training Supervisors to Respond to Harassment or Discrimination Complaints

Springboarding off of the above discussion about non-discrimination and non-harassment policies, employers should invest time and effort into training (both preventative and responsive) to apply these policies. Often, employees in a company’s human resources department are well trained on what constitutes sexual harassment and discrimination and how to respond to a complaint of sexual harassment or discrimination. However, many companies have various levels of supervisors – assembly line supervisors, plant supervisors, department supervisors, and so on – who may not be as familiar with relevant laws as the human resources department. Similarly, colleges and universities have Careers offices well trained in sexual harassment and Title IX (a federal law pertaining to discrimination on the basis of sex in an education program), but other faculty and staff may not be as familiar with the proper procedures for responding to and reporting complaints. Accordingly, companies and educational institutions alike should invest in training their supervisors or faculty and staff on best practices in this area.

The front end costs, both monetary and time, associated with training can pay off in multiple ways. For example, a student or employee may report harassment or discrimination to his or her immediate supervisor or professor but ask that the complaint be kept confidential and not passed along within the organization (to HR or the Title IX Coordinator, for example). An untrained supervisor or faculty member, believing complete confidentiality to be the right approach, may choose not to inform others. This non-reporting can be used in a subsequent lawsuit to show that the company or school had notice that harassment or discrimination was occurring on its premises but did not take any steps to prevent recurrence or adequately take corrective action. On the other hand, with proper training the supervisor or professor would have reported the victim’s complaint up the chain of command and the organization could have adequately investigated and responded to the victim’s complaint.

It is important for all levels of supervisors, faculty and staff to understand the importance of responding to and appropriately reporting every complaint or even suggestion of harassment or discrimination. Moreover, training can assist all levels of an organization on how to balance the organization’s need for effective action and the victim’s need for privacy.

Please let us know if we can help you with non-discrimination or non-harassment training at your company.

EEOC and FTC Release Joint Publication on Background Checks

Wyche at Work previously covered an Equal Employment Opportunity Commission suit filed in South Carolina alleging that BMW improperly used background checks to make hiring decisions. The EEOC has once again highlighted the use of background checks in the workplace. On March 10, 2014 the EEOC and the Federal Trade Commission (responsible for implementing consumer protection laws) jointly issued a background check guide for employers.

The guide contains several tips detailing how to legally use background checks in the workplace. Some of the tips include the following:

  • If you choose to ask for background checks from applicants and/or employees, make sure to ask for background checks from all applicants and/or employees;
  • Avoid asking for genetic information but if you do access genetic information, do not use it to make an employment decision;
  • Get permission from any applicant or employee before obtaining a background check about them;
  • Notify an applicant or employee before taking an adverse employment action based on a background check about them; and
  • When making employment decisions based on the results of a background check, make sure to apply the same standards to all applicants or employees without regard to race, color, religion, or other protected categories.

The agencies’ joint guide on background checks is not the first time either agency has attempted to counsel employers in this area of the law.  In April 2012 the EEOC released thorough and detailed enforcement guidance on considering arrest and conviction records in employment decisions. Additionally, the FTC released a January 2012 publication counseling employers on using background checks in the workplace.

The guide and the agencies’ previous counseling efforts are helpful summaries of some of the key laws involved in using background checks in employment decisions, but employers should not take reviewing them as a guarantee of compliance with federal law. Do not hesitate to contact Wyche with any questions you have about background checks in the workplace.

Recent NLRB Opinion Reverses Board’s Stance on Broad Workplace Policies for South Carolina Employer

Past editions of Wyche at Work have detailed the National Labor Relations Board’s distaste for overbroad workplace policies. The NLRB has held that employees could reasonably read broad policies to prohibit employees’ NLRA Section 7 protected rights to discuss the terms and conditions of the workplace. Recently, a case involving Copper River Grill has bucked this trend.

Copper River Grill, a South Carolina employer, established and enforced a workplace conduct policy. This policy prohibited employees from, among other things:

  • insubordination including displaying a negative attitude that disrupted staff or guests;
  • dispersing sensitive company operating materials including policies, procedures, financial information, or manuals; and
  • engaging in any act which poses a threat to the company’s operation, goodwill, or profitability.

The NLRB held that all of these workplace policies were lawful and enforceable. In doing so, the NLRB found that employees could not reasonably read the conduct rules to limit their NLRA Section 7 rights. More specifically, the NLRB noted that:

  • the insubordination rule, although broad on its face, was properly narrowed by the inclusion of limiting language referencing the company’s protectable interest – a workplace free from disruptions;
  • the dispersal rule only applied to sensitive materials, which would not include ordinary terms and conditions of employment; and
  • the catch-all rule referenced the company’s protectable interest – an operational and profitable workplace.

This decision is quite surprising given the NLRB’s recent record of striking down similarly broad workplace policies. Moreover, the decision may be driven by the particular facts in front of the Board as the case dealt with an employee who was terminated for insubordination after her expletive-laden rant in front of customers and staff.

Keep an eye out for future NLRB updates on Wyche at Work as we find out whether Copper River Grill is a turning point for the NLRB or an aberrant decision. Do not hesitate to contact us with any questions you may have in the interim while you establish or review your workplace policies.

Weapons at Work – Restaurant Update

Wyche at Work previously highlighted a South Carolina proposed law which would, among other things, allow gun owners with concealed weapons permits to enter bars and restaurants serving alcohol. The proposed law was passed by the South Carolina General Assembly on January 23, 2014 and enacted by Governor Nikki Haley on February 11, 2014.

The new law contains several exceptions worthy of comment. First, gun owners carrying concealed weapons may not consume alcohol when entering a bar or restaurant. Second, businesses may still ban concealed weapons on their premises. A gun owner who brings a concealed weapon on the premises of a bar or restaurant and either drinks on the premises or violates the premises’ concealed weapons ban may be convicted of a misdemeanor, fined up to $2,000, placed in prison for up to two years, and have his or her concealed weapons permit revoked for five years.

This recent change in gun law highlights the importance of having and communicating an effective workplace weapons policy. Please let us know if you have any questions or concerns while drafting, reviewing, or adopting such a policy.

If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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