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Arizona Lodging & Tourism Association
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Presented by:
Shayna H. Balch
Phone: (602) 281-3406
Email: [email protected]
www.laborlawyers.com
Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport
Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans
Orlando · Philadelphia · Phoenix · www.laborlawyers.com
Portland · San Antonio● ·Phone
San Diego
· San Francisco · Tampa · Washington, DC
(602) 281-3400
Arizona Lodging & Tourism Association
Today’sNew
webinar
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New Rules!
begin shortly.
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How to We
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Handbook
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Presented by:
Matthew Simpson
Presented by:
Phone:
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Shayna
H. 240-4152
Balch Presented by:
Email: [email protected]
Phone: (602) 281-3406
Shayna H. Balch
Jansen Ellis
Email: [email protected]
Phone: (602) 281-3406
Phone: (404)
240-4212
Email:
[email protected]
Email: [email protected]
www.laborlawyers.com
Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport
Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans
Orlando · Philadelphia · Phoenix · www.laborlawyers.com
Portland · San Antonio● ·Phone
San Diego
· San Francisco · Tampa · Washington, DC
(602) 281-3400
Handbook Objectives
Employee Based:
• Answer basic questions
• Describe benefits
• Identify expectations
• Outline acceptable behavior
www.laborlawyers.com ● Phone (602) 281-3400
Handbook Objectives
Employer Based:
• Promote the Company
• Comply with the law
• Protect against litigation
• Improve unemployment experience
rating
www.laborlawyers.com ● Phone (602) 281-3400
The Most Common Mistakes
• Not tailoring to your business
• Giving employees “rights”
• Trying to solve every problem
• Not following through
• Forgetting to update
• Making it a procedure manual
for management
www.laborlawyers.com ● Phone (602) 281-3400
Handbook Essentials
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At-will
EEO
No Harassment
Reasonable Accommodations
Drug and Alcohol
Open Door/Reporting
Procedures
• Basic Work Rules
• Electronic Communications
• Work Schedule
 Absenteeism/Tardiness
 Overtime
 Timekeeping
• Leave Policies




Jury Duty
Witness Duty
Voting Leave
FMLA
• Protecting Information and
Property
www.laborlawyers.com ● Phone (602) 281-3400
Preamble
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•
•
Welcome to Practice
Handbook is not an employment contract
Handbook confers no contractual rights to Employee
Supersedes all prior inconsistent handbooks or policies
Reserve right to amend handbook
www.laborlawyers.com ● Phone (602) 281-3400
Thorough At-Will Language
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•
With or without cause
With or without notice
Supersedes any prior agreements
Can only be changed in writing
Signed by the Owner or President
www.laborlawyers.com ● Phone (602) 281-3400
Promises that Jeopardize
At-Will Employment
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•
•
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Termination only for “cause” or “good cause”
Use of the word “permanent”
We are a family
We provide long-term job security
We treat employees fairly
www.laborlawyers.com ● Phone (602) 281-3400
Some of The
Most Important Policies
www.laborlawyers.com ● Phone (602) 281-3400
Equal Employment Opportunity
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•
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All protected categories (list them)
All employment actions
Prohibit discrimination, harassment & retaliation
Explain consequences of violations
www.laborlawyers.com ● Phone (602) 281-3400
Anti-Harassment
• Include a clearly defined complaint procedure
 Report to high-ranking managers
 Report to male or female
 Include additional layers of reporting
www.laborlawyers.com ● Phone (602) 281-3400
Anti-Harassment (Continued)
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•
Not just sex
Complaint procedure
Define prohibited acts broadly, but give examples
Comments, objects, contact
www.laborlawyers.com ● Phone (602) 281-3400
Anti-Harassment (Continued)
• No retaliation
• Limited confidentiality in investigations
• Non-Employees covered
www.laborlawyers.com ● Phone (602) 281-3400
Problem Solving Procedure
• List chain of command
• Include a “bypass” procedure
• Must be effective!
www.laborlawyers.com ● Phone (602) 281-3400
Absenteeism & Tardiness
• Notification requirements
• Consequences
• Automatic termination / job abandonment
www.laborlawyers.com ● Phone (602) 281-3400
Leave Policies
• Non-Medical Leaves
– Bereavement
– Civic Responsibilities
• Jury or witness duty
• Voting
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–
–
–
Eligibility Duration
Military
Personal
Sick
www.laborlawyers.com ● Phone (602) 281-3400
Medical Leave (FMLA)
• Covered employees
• Employee eligibility
• Eligible employees get 12 weeks of:
– Job-protected
– Benefits continued
– Unpaid leave
www.laborlawyers.com ● Phone (602) 281-3400
Medical Leave (non-FMLA)
• Required, even if not covered by FMLA
• May be a reasonable accommodation
• Explains basic terms of leave
– Eligibility requirements
– Reinstatement rights
www.laborlawyers.com ● Phone (602) 281-3400
Reasonable Accommodations (EEOC
Guidance & Enforcement)
www.laborlawyers.com ● Phone (602) 281-3400
Recent EEOC Settlements
Inflexible Leave Policies
• $20 million
– no fault attendance policy
• $6.2 million
– inflexible 12-month leave policy
• $4.85 million
− inflexible 12-week leave policy
• $3.2 million
– return to “full duty with no restrictions” policy
• $1.35 million
– inflexible 12-week leave policy
www.laborlawyers.com ● Phone (602) 281-3400
Accommodation 101
• “Interactive process” requires affirmative steps: does the
employee require any “reasonable accommodation” to
– perform the essential functions of his or her job?
– enjoy the benefits and privileges of employment?
• “Reasonable Accommodation”
may include:
– unpaid leave
– modified duty/reduced work schedule
– telecommuting
– reassignment to a vacant position
www.laborlawyers.com ● Phone (602) 281-3400
Inflexible Leave Policies
• Automatic termination upon expiration of
leave = trouble
• “No fault” absence policies = trouble
• No individualized assessment
• No opportunity to determine if extended leave is a
reasonable accommodation
• 100% return to work policies = trouble
• Need to consider modified duty and/or reduced
work schedules
www.laborlawyers.com ● Phone (602) 281-3400
Types of Accommodation
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Making facilities accessible
Job restructuring
Modified work schedules
Work-at-home arrangements
Transfer or reassignment
Leaves of absence
Acquiring/modifying equipment/devices
Adjusting/modifying exams, policies, training
Providing qualified readers or interpreters
www.laborlawyers.com ● Phone (602) 281-3400
Leave: Best Practices
• Revise inflexible leave
policies
• Eliminate reference to “100%
recovered” or “full duty”
• Train supervisors to
recognize accommodation
requests
• Engage in a dialogue with
each employee who requests
leave
• Ask when the employee
anticipates returning to work
www.laborlawyers.com ● Phone (602) 281-3400
NLRB Enforcement
• NLRB has looked closely at
employee handbooks
• Applies in union and nonunion companies
• Unlawful policies discourage
union participation
www.laborlawyers.com ● Phone (602) 281-3400
Social Media
“statements posted electronically…that damage the Company,
defame any individual or damage any person’s reputation, or
violate the policies outlined in the Employee Handbook, may be
subject to discipline, up to and including termination of
employment.”
Lawful
Unlawful
www.laborlawyers.com ● Phone (602) 281-3400
Work Rules
“be courteous, polite and friendly”
Lawful
Unlawful
www.laborlawyers.com ● Phone (602) 281-3400
Work Rules
“no one should be disrespectful or use profanity or any other
language which injures the image or reputation of the Dealership.”
Lawful
Unlawful
www.laborlawyers.com ● Phone (602) 281-3400
Work Rules
“off-duty employees are prohibited from entering the workplace
except to conduct employer-related business”
Lawful
Unlawful
www.laborlawyers.com ● Phone (602) 281-3400
Work Rules
“off-duty employees are prohibited from entering the workplace,
except to attend employer-sponsored events”
Lawful
Unlawful
www.laborlawyers.com ● Phone (602) 281-3400
Work Rules
“employees are prohibited from walking off the job or willfully
restricting production”
Lawful
Unlawful
www.laborlawyers.com ● Phone (602) 281-3400
At-Will Policies
“the at-will relationship cannot be amended, modified or altered in
any way.”
Lawful
Unlawful
www.laborlawyers.com ● Phone (602) 281-3400
At-Will Policies
“only the CEO or his designee has the authority to enter into an
agreement that is contrary to the ‘employment at will’ relationship.”
Lawful
Unlawful
www.laborlawyers.com ● Phone (602) 281-3400
Confidentiality In Workplace Investigations
“employees who disclose their participation in this internal
investigation will be subject to immediate termination”
Lawful
Unlawful
www.laborlawyers.com ● Phone (602) 281-3400
Social Media Policy
• Employers must weigh the risks of inappropriate on-line
activity against the potential harm to employee relations if
the company’s efforts are perceived as excessively
intruding into an employees’ private lives
• Employers should develop a specific policy governing
usage of social networking sites and train employees on
the policy and appropriate use of sites
www.laborlawyers.com ● Phone (602) 281-3400
Social Media Policy
• Employer concerns:
Upholding the company’s reputation in the community;
Protecting confidentiality and trade secrets;
Enforcing existing employment policies
www.laborlawyers.com ● Phone (602) 281-3400
Social Media Policy
• NLRB concerns:
Prohibitions on protected employee communications relating
to terms and conditions of employment;
Prohibitions on criticizing the company; and
Requirements that employee posts be “completely accurate”
www.laborlawyers.com ● Phone (602) 281-3400
Social Media Policy – What Can I Do?
• Remind employees that on-line activities reflect the company and its
service to its customers and the greater community
• Require that all information posted or published by an employee
complies with existing lawful employment policies, including use of
confidential and proprietary information
• Prohibit employees from defaming, harassing, or threatening coworkers
• Remind employees that on-line activities are often public and can be
accessed by others
www.laborlawyers.com ● Phone (602) 281-3400
NLRB Enforcement
• Purple Communications decision in December 2014
• Employers cannot completely limit employee use of
company e-mail systems on non-working time
• Employees must be able to use Company e-mail for
protected concerted activities on non-working time
www.laborlawyers.com ● Phone (602) 281-3400
Tips for a Social Media Policy
• Be Specific:
 Target specific behaviors that violate the law or company policies
 Flawed policy: Costco’s policy barring statements that harm the
Company’s reputation – employees could read it as a ban on
protesting the treatment of employees
 Acceptable policy: Wal-Mart’s policy limited its prohibition to
comments that are malicious or obscene
www.laborlawyers.com ● Phone (602) 281-3400
Tips for a Social Media Policy
• Give Examples:
 Broad categories of prohibited or required conduct will draw
scrutiny
 Give examples not related to terms and conditions of employment
but related to business products, trade secrets, guest information,
etc.
• Stay Current:
 Odds are, unless you’ve drafted a policy in the last few months,
it’s not current
www.laborlawyers.com ● Phone (602) 281-3400
Drugs and Alcohol
• Arizona is one of 23
states that allows the use
of marijuana for certain
medical purposes.
• In most states Employers
remain free to implement
and utilize drug-free
workplace programs and
policies in spite of
medical use of marijuana.
www.laborlawyers.com ● Phone (602) 281-3400
Arizona Medical Marijuana Act
A. R. S. § 36-2813(B)
B. Unless a failure to do so would cause an employer to
lose a monetary or licensing related benefit under
federal law or regulations, an employer may not
discriminate against a person in hiring, termination or
imposing any term or condition of employment or
otherwise penalize a person based upon either:
1. The person’s status as a cardholder.
2. A registered qualifying patient’s positive drug test for
marijuana components or metabolites, unless the
patient used, possessed or was impaired by
marijuana on the premises of the place of
employment or during the hours of employment.
www.laborlawyers.com ● Phone (602) 281-3400
Legislative “Fix” (HB 2541)
– Expands the definition of “good faith”
– Defines “impairment”
– Allows employers to exclude an employee from “safetysensitive positions”
– Defines “current use of drugs”
– Permits employers to use a verification system to verify
cardholder status
– Expands the safe harbor provision contained in Arizona’s
drug testing statute
www.laborlawyers.com ● Phone (602) 281-3400
Expanded Definition of “Good Faith”
• No cause of action may be established against
an employer for actions based on the employer’s
“good faith” belief that an employee had used or
possessed any drug or had an “impairment”
while working, while on the employer’s
premises, or during hours of employment
www.laborlawyers.com ● Phone (602) 281-3400
Cigarettes
• Smoking is one of the
great controversies
employers face
• Smoke break
– Employee has no protected
right to take a break due to
nicotine addiction
www.laborlawyers.com ● Phone (602) 281-3400
Cigarettes
Smoke-Free Arizona Act
• No smoking in all public places and places of
employment
– (20 feet of entrances, windows, ventilation systems)
• Exceptions
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Private residences
Hotel rooms designated as Smoking
Tobacco stores
Veteran and fraternal clubs
Religious exemption
Outdoor patios (20 foot rule)
Theatrical performances
www.laborlawyers.com ● Phone (602) 281-3400
E-Cigarettes
• Currently no state law in
Arizona re: e-cigarettes.
• Employers are free to
create their own policies
based on their beliefs as to
whether or not e-cigarettes
should be allowed in the
workplace.
www.laborlawyers.com ● Phone (602) 281-3400
Conflict of Interest
• Moonlighting that interferes
with employment
• Engaging in competitive
business
• Financial interest in
competing business
• Notify Company of potential
conflicts
www.laborlawyers.com ● Phone (602) 281-3400
Protection of Company’s
Valuable Information
• Business Records
• Confidential Information
• Electronic Communication
www.laborlawyers.com ● Phone (602) 281-3400
Business Records
• The Company’s property
• Always subject to review by management
www.laborlawyers.com ● Phone (602) 281-3400
Confidential Information
• Identify it
• Take actions to protect it
• Tell employees of consequences of disclosure
• Retrieve it before employees leave
• Remind departing employees of their obligations
www.laborlawyers.com ● Phone (602) 281-3400
Electronic Communications
• Define
• Right of access by Company
– Computers are monitored
• Property rights apply
– Computers & other electronic equipment are Company
property
• Acceptable and unacceptable uses
www.laborlawyers.com ● Phone (602) 281-3400
Protecting People and Property
• Inspection of Work Area
• No Weapons
• Safety
• Unauthorized Recording (Voice/Picture/Video)
• Use of Company Property
• Workplace Security
www.laborlawyers.com ● Phone (602) 281-3400
Workplace Violence
• Avoiding negligent supervision/retention
• Zero tolerance for violence from any source
• Requirement to immediate report of threats
• Statement that all threats are to be taken seriously
• Even off-premises conduct can be covered
• Involve law enforcement if necessary
www.laborlawyers.com ● Phone (602) 281-3400
The Ball’s In Your Court
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•
•
•
Benefits
Employee Pay
PTO
Work Schedule
The Company’s Image
Additional policies
www.laborlawyers.com ● Phone (602) 281-3400
Company Benefits
• Various benefits
– 401(k)
– Insurance
• No details of benefits
• Plan documents control
– COBRA
www.laborlawyers.com ● Phone (602) 281-3400
Company Benefits (Continued)
• Employee’s pay
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–
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–
Payday
Direct deposit
Deductions
Release of pay checks
www.laborlawyers.com ● Phone (602) 281-3400
PTO
• Paid Holidays
– Eligibility
– Unapproved absences before or after Holiday
– Holiday falls on weekend or during employee’s vacation
• Paid Vacation
• Accrual Issues
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–
–
–
Probationary employees
Use it or lose it
Rollover
Payment at termination
www.laborlawyers.com ● Phone (602) 281-3400
Basic Work Rules
• Do not promise progressive discipline
• Use broad, general categories
• May result in discipline “up to and including immediate
termination”
www.laborlawyers.com ● Phone (602) 281-3400
The Company’s Image
• Personal appearance
– Dress code
– Body Piercing
– Tattoos
– Personal Hygiene
– Work area appearance
www.laborlawyers.com ● Phone (602) 281-3400
Forget About It!
• Pre-employment
• Issues that rarely arise
• Issues that you don’t want to raise (i.e., access to
personnel files, exempt status)
www.laborlawyers.com ● Phone (602) 281-3400
Implementation
• Provide written notice announcing re-issuance of the handbook
• Conduct meetings with employees to cover the relevant
changes
 Keep track of attendance at meetings (ie, sign-in sheets, etc.)
• Re-issue employee handbook
 Allow employees to keep a copy of the revised handbook
 Have employees sign Acknowledgment Form
 Photocopy or retain copies of signed documents
www.laborlawyers.com ● Phone (602) 281-3400
Implementation
• Even the best handbook fails if you
can’t “prove” your employees
received it
• Obtain a signed acknowledgment of
receipt for the handbook and all
revisions
• Keep the signed acknowledgment in
personnel file for at least one year
after termination
www.laborlawyers.com ● Phone (602) 281-3400
Future Updates
• When the law changes
• When your policies change
• Annually
• When you’ve run out of copies
www.laborlawyers.com ● Phone (602) 281-3400
Final Questions?
Presented by:
Shayna H. Balch
Phone: (602) 281-3406
Email: [email protected]
www.laborlawyers.com
Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport
Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans
Orlando · Philadelphia · Phoenix · www.laborlawyers.com
Portland · San Antonio● ·Phone
San Diego
· San Francisco · Tampa · Washington, DC
(602) 281-3400
Thank You
Presented by:
Shayna H. Balch
Phone: (602) 281-3406
Email: [email protected]
www.laborlawyers.com
Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport
Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans
Orlando · Philadelphia · Phoenix · www.laborlawyers.com
Portland · San Antonio● ·Phone
San Diego
· San Francisco · Tampa · Washington, DC
(602) 281-3400