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Despite a 10 percent overall drop in the number of charges of employment discrimination, the EEOC recently reported that sexual harassment charges filed with the agency jumped by 13.6% from the previous year. The 7,609 sexual harassment charges received clearly demonstrate that the #MeToo movement is in no way slowing down. What do employers need to know about this development?
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When was the last time the company handbook was reviewed? It’s a worthy priority for the new year—or anytime, really. Handbooks are living documents that should be reviewed regularly, especially considering the federal government’s focus on deregulation and ever-changing updates from state legislatures and municipalities. Here are five key issues that may trigger updates:
1. Workplace conduct and social media
Under former President Barack Obama, the National Labor Relations Board (NLRB) scrutinized social media policies and other workplace conduct standards that may limit workers’ rights. For example, in many cases the board considered employee social media posts that are critical of employers a form of protected concerted activity and thus not necessarily grounds for disciplinary action.
With the Trump administration, the pendulum may swing the opposite way, giving employers more leeway to develop workplace conduct rules, said Bruce Sarchet, an attorney with Littler in Sacramento.
Already, the board overruled its previous standard that struck down policies if they could be “reasonably construed” to curb employee discussions about wages and working conditions—even if the policies weren’t intended to do so. “With [the] signal of a sea change in NLRB policy, employers need to pay close attention to the board’s new ‘policies on policies’ as they develop,” said Bonnie Martin, an attorney with Ogletree Deakins in Indianapolis. In the meantime, make sure your handbook’s conduct guidelines are specific and clear.
2. Sexual harassment
With sexual harassment news sweeping the country, make sure your policies spell out exactly how employees can complain and give people multiple outlets for doing so. “Having a policy that requires employees to report incidents to their supervisor isn’t helpful if the supervisor is the one doing the harassing,” said Randi Kochman, an attorney with Cole Schotz in Hackensack, N.J.
Take state requirements into account as well. California, for example, has mandated that content on harassment based on gender identity, gender expression and sexual orientation be included in supervisor training. The change took effect Jan. 1.
3. Parental leave
Leave laws are expanding in many states. In California, for example, businesses with 20-49 employees must offer job-protected baby-bonding leave beginning this year.
Workers in New York will be eligible for paid family leave in 2018, and even in states without such provisions, many businesses are opting to provide paid parental time off.
When updating handbooks, don’t include separate baby-bonding rules for mothers and fathers, Kochman said. While employers can include differing standards for mothers regarding the physical limitations imposed by pregnancy, they should use genderless terms such as “primary caretaker” in their parental leave policies.
4. Disability and other accommodations
An employer’s obligation to provide leave could go beyond the 12 weeks afforded under the federal Family and Medical Leave Act. For example, a request for intermittent leave to treat a medical condition may be considered a reasonable accommodation under the Americans with Disabilities Act.
While the 7th U.S. Circuit Court of Appeals ruled that leave that extends beyond FMLA isn’t considered a reasonable accommodation, the Equal Employment Opportunity Commission and other courts disagree.
That’s why it’s important to carefully review policies and keep up with developing laws.
Medical marijuana case law is also evolving. In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs for using the drug could bring claims under state disability laws.
“HR professionals should review their drug-testing policies and practices and consider consulting counsel before taking any adverse action following a positive drug test for marijuana in a state in which medical or recreational use is legal,” said Cheryl Orr, an attorney with Drinker Biddle in San Francisco.
5. The bigger picture
With all the state and local changes, it may no longer work to have a single handbook with blanket policies for workers in different locations. “Now is a good time to add state supplements to the handbook that are distributed only to employees within the relevant state,” said Jeffrey Pasek, an attorney with Cozen O’Connor in Philadelphia.