Is That in Writing? Making the Most of Your 2018 Employee ... · PDF fileIs That in Writing? Making the Most of Your 2018 Employee Handbook October ... • “How to Craft an Employee

Is That in Writing

Making the Most of

Your 2018 Employee

Handbook

October | 2017

+

April | 2017

+

Deidra A NguyenLittler Mendelson PC

(619) 515-1844DANguyenlittlercom

Licensed in California and Washington

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Agenda

6

1

2

3

4

5

Do you really need a handbook

Common approaches to drafting a multistate handbook

What to include in your handbook

Key trends in handbook drafting

NLRB criticism of employee handbooks

Drafting resources

+

Poll Question Having a handbook is

1 required under federal law for employers

with 50 or more employees

2 required under state law for employers

with employees in multiple states

3 recommended for employers of any size

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Do you really need a handbookWho reads this stuff anyway

bull Educates

bull Demonstrates Compliance

bull Promotes Fairness

bull Supports Policy Enforcement

bull Myth Only big companies need handbooks

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Drafting a Multistate HandbookSome common approaches

bull National handbook and state supplements

bull Separate handbooks for each state

bull National handbook with supplements for certain states

bull National handbook with ldquorequiredrdquo state policies

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Poll Question Does your organization currently have an employee handbook

1 Yes and we have employees working in

only one state

2 Yes we have one handbook that applies

to employees in multiple states

3 Yes we have different handbooks

depending upon where the employee

works

4 No

5 Other

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Policies that generally must be included

bull Applicable law mandates that a written policy be included

bull Statement that company complies with all applicable laws

bull State supplements Local requirements that differ from national

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Policies that are strongly recommended

bull At-Will Statement

bull Discrimination Harassment and Retaliation

bull WageHour

bull Paid Sick LeavePaid Time Off

bull Legally-Required Leaves

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Policies that should not be included

bull Aspirational policies

bull Operational policies

bull Job descriptions

bull Policies that are intended to be contractual

bull Policies that conflict with contractual or legal commitments

bull Policies that limit the companyrsquos discretion

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Key Trends in Handbook Drafting

bull Proliferation of local legislation

bull Agency criticism of barriers to external remedies

bull Defend Trade Secrets Act

bull EEOC on Parental Leave

bull NLRB Criticism of Employee Handbooks

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Poll Question Do you offer paid parental leave

1 Yes

2 No

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Key Trends in Handbook DraftingEEOC on Parental Leave

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Poll Question Is your workforce unionized

1 Yes

2 No

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Key Trends in Handbook DraftingNLRB Criticism of Employee Handbooks

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NLRB Criticism of HandbooksBoth unionized and nonunionized employers are affected

Employees shall have the right to self-organization to form join or assist labor organizations to

bargain collectively through representatives of their own choosing and hellipto engage in other

concerted activities for the purpose of collective bargaining or other mutual aid or protection and

shall also have the right to refrain from any or all of such activities

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NLRB Criticism of HandbooksHandbook provisions violate the NLRA if they

bull actually interfere with Section 7 activities

bull have been applied to interfere with Section 7 activities

bull were promulgated in response to union activity

bull could be construed to interfere with Section 7 activities

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What Does it Mean for Activity to be ldquoProtectedrdquoEmployees have a statutory right to

bull Take action to improve working conditions

bull Discuss dissatisfaction with working

conditions with one another

bull Discuss wage rates bonuses and benefits

with one another

bull Complain about favoritism policies or

other terms and conditions of employment

bull Criticize managementrsquos actions affecting

their conditions of employment

bull Enlist outside support

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Policies Under NLRB ScrutinyCommon Offenders

bull Off-Duty Access by Employees

bull Conflict of Interest

bull Confidentiality of Investigations

bull At-Will DisclaimersAcknowledgments

bull Acknowledgment

bull Workplace Conduct

bull Social Media

bull Arbitration

bull Fraternization

bull Recordings in the Workplace

bull Use of Electronic Equipment

bull Solicitation Distribution

bull Confidentiality

bull Contact with the Media

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Drafting Resources

bull XpertHR Resources

bull httpwwwxperthrcomemployee-handbooks

bull httpwwwxperthrcompageslittler-mendelson

bull Littler Mendelson Resources

bull ldquoNLRB General Counsel Issues Report Concerning Legality of Common Employer Rulesrdquo

bull ldquoHow to Craft an Employee Handbook Outside the United States or Whether to Issue One at

Allrdquo

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Poll Question Are you going to be making changes to your handbook based on what you learned today

1 Yes

2 No

3 MaybeUndecided

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Thank You

Visit wwwxperthrcom Littler DeidraNguyen Littler DeidraNguyen