With the rise of employee labor law claims and lawsuits an up-to-date and accurate employee handbook is not really an option. Reviewing and revising your company policies is good practice.
[This is an updated and revised version of a post from February 2018]
A company policy is a statement that defines a business's approach to an issue. The typical employee handbook serves as a resource that documents company policies. A proper manual should provide a comprehensive explanation of the company's rules for employee conduct. In other words, it informs your employees what is appropriate behavior in your workplace.
Because several new laws went into effect at the beginning of 2019, it is incumbent upon HR staff and management to review, revise and update their policy manuals and employee handbooks. Not only is this important for the benefit and clarity of your employees, it can become a litigation issue if your written policies do not uphold and reflect current state and federal laws in the workplace.
Recent Changes and Additions to the California Labor Laws
Some of the new laws have been designed to establish stricter rules to help prevent workplace harassment and provide sexual misconduct victims stronger support for obtaining justice. Here are some of the key harassment and sexual misconduct-related laws that went into effect beginning in January 2019:
SB 820 is a new law that prohibits secret settlements and non-disclosure agreements to be made in sexual harassment cases. A victim of sexual misconduct can choose to keep his or her name private, however, the perpetrator’s identity cannot be kept confidential.
Similar to SB 820, SB 1300 also prohibits employers from requiring employees to sign a release of liability as in exchange for a bonus or as a condition of continued employment.
SB 1343 now requires sexual harassment training biannual for nearly all California employees, not just managers and supervisors.
AB 2770 prohibits victims of sexual harassment and employers from being sued for defamation by the alleged harasser as the result of a sexual harassment complaint and the employer’s internal investigation being conducted.
Lactation Accommodation Requirements
On a different note, changes have been made to Section 1031 of the California Labor Code which requires that employers make space available for an employee to express milk in a space other than a toilet stall. AB 1976 amends Section 1031 as follows:
- It requires employers to provide a space other than a restroom.
- Requires that the lactation accommodation area be permanent space.
For employers with operational, financial, or space limitations, and who may not have, or be able to make available, a permanent area close to an employee's work area for these purposes, there is an exception clause. These employers can be considered to be in compliance by providing a temporary location that meets the following criteria:
- Must be "private and free from intrusion while an employee expresses milk;"
- Must only be used "for lactation purposes while an employee expresses milk;" and
- The employer meets any other state law requirements regarding lactation accommodations, such as compliance with any applicable Industrial Wage Order relating to rest periods.
For businesses that are unable to provide a permanent nor temporary location for a lactating employee, there are two exemptions that can be applied:
- Agricultural employers can be complying by providing "a private, enclosed, and shaded space” for an employee to express milk.
- An employer can apply for an “undue hardship exemption” by providing evidence that the size, nature, or structure of the business prevents them from complying with the revised requirements of Section 1031.
In the second instance, the employer would be allowed to provide any another location that is available for an employee to express milk other than a toilet stall.
The ABC Test and Independent Contractors
A recent California Supreme Court decision has significantly changed the criteria for defining and classifying a worker as either an employee or independent contractor. Unlike the previous approach, employers are now compelled to use what is known as the "ABC Test."
Under the new interpretation of employee, the law considers any worker as an employee, unless the employer can provide sufficient proof that the worker is an independent contractor in accordance with factors imposed by the applied test.
The three factors that must be met:
(A) the worker is free from the control and direction of the presumed employer in connection with the work performed, both under the contract and in fact, and;
(B) the worker performs work outside the usual course of the presumed employer's business and;
(C) the worker is "customarily engaged" in an independently established trade, occupation, or business as the work he or she is performing for the presumed employer.
Time to Review and Revise Your Employee Handbook
Unfortunately, too many businesses either fail to create a documented set of company policies, or what they do have is often incomplete and possibly out-of-date. The start of a new year is often a great time for reviewing and revising - or creating - your employee handbook, however.
For employers, there is a more compelling reason for creating or updating a definitive manual of company policies is the rise of various employee claims and employee lawsuits.
In fact, according to an article in Wikipedia,
"Federal and state laws and the growing number of cases of employee related litigation against management strongly suggests that a written statement of company policy is a business necessity for firms of any size."
There are growing examples of litigation against companies stemming from employee actions such as the release of private information, mismanagement of scheduling, overtime pay, reporting time pay and minimum hours worked, etc.
In addition, the rise of complaints regarding the actions of one employee against another, such as sexual harassment and other types of offensive employee conduct, is in the news and gaining heightened awareness.
This does include discrimination suits brought against employers by the the United States Equal Employment Opportunity Commission (EEOC), which are also on the increase.
All of these issues can and should be addressed by your company's policies in a comprehensive, yet equally succinct, employee handbook.
Is Your Employee Handbook Current?
A company’s employee handbook is its blueprint for internal conduct. It is a written guide to how the company interacts with employees and the employees with one another. Policies should cover all aspects of what a business expects from employees such as attendance, safety rules, legal compliance with employment laws, facilities management, and dress codes.
Policies are guidelines that define company rules and procedure, and should include the consequences for not following them. And because of the dynamic nature of labor law and regulations, the employee handbook should be regularly reviewed and updated when necessary.
One of the most important aspects of any employee handbook is that it is kept up-to-date.
Laws change, new issues arise, and businesses evolve over time. And if your handbook is in multiple languages, each version needs to be updated, as well.
Questions to Consider for Employee Handbook Review and Revision
1. Who Should Do This?
In many companies, human resources staff are responsible for reviewing policies and updating them. In smaller companies the senior managers may be responsible for updating policies. Because company policies must comply with relevant legislation and regulations it’s a good idea to have them reviewed by an attorney periodically, as well.
2. What Needs to be Reviewed?
Review all policies to ensure they are still relevant and up to date. For example, a policy regarding manual time sheets to be collected by supervisors would be no longer relevant if your company has installed an automatic electronic attendance system. You should also review for compliance to legislation and regulations, for current company practices and procedures, and current products and services.
3. What is a Good Approach?
Employee handbooks are typically produced as paper copies of documented policies put together in either binders or printed as book-bound publications. However, many companies post their handbooks in digital formats that employees can access them easily on their computers.
A great approach is to keep your original copies intact, and categorize your updated revisions with a numbering system so that your changes are documented and dated. These updates are then made to the digital version for distribution to all involved so they are informed of the policy change.
A signed acknowledgment of receipt of the updated handbook should be required as an additional compliance step.
Keep Your Employees Informed and Your Company Protected
Company policies reinforce and clarify the standards expected of employees and help employers manage staff more effectively by defining acceptable and unacceptable behavior in the workplace.
And an employee handbook that is comprehensive and up-to-date will provide the documentation for businesses faced with possible litigation arising from employee disputes.
If you have questions regarding this, or other HR compliance issues and practices, let us help you in managing your HR needs, payroll processes, and staying on top of compliance demands. Get your Free Download: Payroll Outsourcing Guide to help you make an informed decision or call Accuchex Payroll Management Services at 877-422-2824.