say what?!?! how your handbook differs from the law and is it helping or hurting you

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www.simonpaschal.com SAY WHAT?!?! HOW YOUR HANDBOOK DIFFERS FROM THE LAW AND IS IT HELPING OR HURTING YOU

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Page 1: Say What?!?! How your handbook differs from the law and is it helping or hurting you

www.simonpaschal.com

SAY WHAT?!?! HOW YOUR HANDBOOK DIFFERS FROM THE LAW AND IS IT HELPING OR HURTING YOU

Page 2: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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An employee handbook is NOT REQUIRED

under any Federal or state (Texas) law.

Page 3: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Page 4: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Tribune Co. CEO Sam Zell’s Handbook

• Reduced handbook from 11,519 words to 3,663

• Uses plain language and no legalese• Opening Language:

– Rule #1: Use your best judgment.– Rule #2: See Rule 1.

Page 5: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Sample Tribune Co. Handbook LanguageDiscrimination based on gender, age, race, religion, national origin, marital status, sexual orientation, disability or any other characteristic not related to performance,

ability or attitude, protected by federal or state law, or not protected (such as inability to tell a joke, the occasional poor wardrobe choice or bad hair day), is strictly

prohibited.-----------------------------------------------------

Making the building too hot, banging on trash can lids or loud bagpipe music are annoyances you can complain about, but such actions don't constitute harassment on

the basis of protected characteristics.------------------------------------------------------

If you use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated. See Rule 1. Coming to work drunk is bad

judgment.

If you do not use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated.

Page 6: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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So if I’m not legally required to have a handbook and there are

companies that don’t have them, do I need one?

Page 7: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Pros and Cons of HandbooksPROS

• Clearly stated expectations of employees

• Uniformity of policies• Helpful in defeating UC

claims• Helpful in defending

lawsuits• Easiest way to disseminate

information to employees

CONS

• Inflexibility• Failure to apply/utilize

policies• Employee dissatisfaction

with imprecise or incomplete language

• Creating lawsuits

Page 8: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Page 9: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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So do I need a handbook or what?

Page 10: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Yes, but…

Page 11: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Only include those policies you actually need and intend to follow.

AND…

Page 12: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Make sure your handbook is compliant with the law.

Page 13: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Page 14: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Employee Threshold Levels for Employment-Related Laws

• Race discrimination (federal)– 1 employee (42 U.S.C. 1981)

• ADEA (federal)– 20 employees

• All other forms of discrimination (state and federal)– 15 employees

• Texas Payday Law– 1 employee

• FLSA– 1 employee (engaged in commerce)

• FMLA– 50 employees

Page 15: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Anti-Discrimination Policies

Page 16: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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The employer is an equal opportunity employer. The employer will not

discriminate and will take measures to ensure against discrimination in

employment, recruitment, advertisements for employment,

compensation, termination, promotions, and other conditions of employment

against any employee or job applicant on the bases of race, color, age, disability, national origin, or sex.

Page 17: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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The employer is an equal opportunity employer. The employer will not

discriminate and will take measures to ensure against discrimination in

employment, recruitment, advertisements for employment,

compensation, termination, promotions, and other conditions of employment

against any employee or job applicant on the bases of race, color, age,

disability, national origin, sex, or sexual orientation.

Page 18: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Sexual Orientation Discrimination• Not a protected category under federal or Texas

state law– Despite the fact a Huffington Post poll found that 62% of

those polled thought it was against federal law to fire someone for being gay or lesbian

• Protected category in Fort Worth– City Ordinance 17-67 (First Texas city, 2000)

• Protected category in Dallas– City Ordinance 46-6

• Protected category in Austin, Houston (as of 2014), and San Antonio

Page 19: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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EEO and Non-Discrimination policies MUST be provided to employees via a handbook or

policy statement or posted notice

Page 20: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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The NLRB and Your Handbook

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Employees are prohibited from discussing their salary or wage levels and company benefits with other

employees. Such information is confidential and may not be discussed in the workplace. Any employee

violating this policy will be considered to have committed a breach of confidentiality and will be subject to disciplinary action, up to and possibly

including termination of employment.

Page 22: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Employees are prohibited from making negative comments about their employer on social media,

including in blogs and online forums.

Page 23: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Employee Discussions and Social Media Policies

• Section 7 of the NLRB gives employees right to engage in concerted activities, including discussing terms and conditions of employment with each other– Outlaws blanket prohibitions against employees discussing

company business or their jobs online on their own time– This includes discussions about compensation and benefits

Page 24: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Employee Discussions and Social Media Policies

• Employers still can prohibit discussions that take place when employees should be working– However, do not single out pay discussions

• Does not protect employee discussions if the compensation and benefits information was obtained improperly

• “Personnel information and documents” still a violation– Flex Frac Logistics LLC v. NLRB

Page 25: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Leave Policies

Page 26: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Family Medical Leave Act (FMLA)• If you are subject to FMLA (50 employees or more), it is

one policy that MUST be provided to employees via a handbook or policy statement or posted notice

• If you are not subject to FMLA, you could be required to extend FMLA leave anyway if you promise it and equitable estoppel conditions are satisfied– Minard v. ITC Deltacom Communications

• Be wary of inflexible leave policies that call for termination upon exhaustion of FMLA leave– EEOC taking ADAAA enforcement action

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Vacation and Sick Leave• No Texas or federal law requires private employers

to provide paid or unpaid leave of any kind– Absent FMLA leave or ADA/ADAAA reasonable

accommodation leave

• No Texas or federal law requires payouts of accrued but unused paid leave– However, see Texas Payday Law

Page 28: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Texas Payday Law• Written promises regarding compensation, including

paid leave and payout of accrued but unused paid leave, will be enforced as written– Unenforceable under the Texas Payday Law if unwritten or

silent

• Applies to vacation pay, sick leave pay, parental leave pay, holiday pay, and severance pay– All considered “wages” under Texas Payday Law

Page 29: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Work Time Policies

Page 30: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Part-Time/Full-Time Status• No Texas or federal law defining what constitutes

part-time or full-time status• Perfectly legal to have one set of benefits (or none at

all) for part-time and a different set of benefits for full-time– Although certain laws may prescribe hours thresholds for

eligibility despite employer classifications• i.e. ERISA (retirement/pension) and health benefits

Page 31: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Work Schedules• No general Texas or Federal law limiting the number

of hours that an employee can work in any given day– Exceptions related to certain industries, teenage workers,

collective bargaining agreements

• Overtime can be required (as long as it is properly compensated)

Page 32: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Breaks• No Texas or federal law requires employees to give breaks

during the workday– If given, however, federal regulations apply

• i.e. 20 minutes or less are compensable, meal breaks not compensable if at least 30 minutes and employee is “completely relieved from duty for the purpose of eating a regular meal”

• One exception: 2010 health care reform law– FLSA now requires employers to allow reasonable break times

for a nursing mother to express breast milk during first year following birth of child

– Do not have to be paid– Only apply to non-exempt employees– Employers with less than 50 employees are exempt if break

would be undue hardship

Page 33: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Wage Deduction Policies

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General Rules• Under Texas Payday Law, all deductions from an employee’s

paycheck must be specifically authorized in writing– Except payroll taxes, court-ordered garnishments, and other

deduction req’d by law or specifically authorized by statute• Deductions which can drop an employee’s pay below minimum

wage:– Wage overpayments– Employee contributions for health insurance & retirement plans– Loans and wage advances– Union dues– Court ordered garnishments and statutorily required attachments– Cash shortages due to misappropriation (employer bears burden)

• Not permissible for ordinary negligence or losses due to damage, destruction, or loss of equipment

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Company Issued Credit Cards• Purchases of items or services for personal use can

be considered loans or wage advances– Can result in deductions below minimum wage

• Losses due to unnecessary or negligent purchases of non-personal items cannot result in deductions below minimum wage

• All must be authorized in writing by employee

Page 36: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Drugs in the Workplace Policies

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Drug Testing• No Texas state law or federal law prohibiting or

limiting private employers’ right to have drug and alcohol testing policies– Be aware of discrimination/ADAAA concerns– So employees can be fired for refusing to sign policy or for refusing

drug test or refusing search– Legal to test some, but not all employees– Pre-employment testing at any stage OK (not a medical exam under

the ADAAA)• Can require applicant to pay cost

• Absent specific industries or laws, no general Texas state or federal law requiring drug testing– For UC misconduct, must show policy, acknowledged receipt,

evidence of consent to testing, chain of custody, test documentation

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Employee Privacy Policies

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Must let employees know they have no expectation of privacy in their use of

company premises, facilities, or resources and are subject to monitoring at all times.

Page 40: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Employee Use of Computers, Internet, E-mail, and Telephones

• Stengart v. Loving Care Agency (NJ Sup. Court)– Invasion of employee’s privacy where policy was vague

regarding types of e-mails covered (personal vs. work) and did not state use would be subject to monitoring

• Employers can record telephone calls but must inform employees that monitoring may be taking place– Employers cannot continue listening to a telephone call

once the employer has established the call regards a private matter

• But employee can be disciplined

Page 41: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Company Facilities

• K-Mart Corp v. Trotti– Employer violated employee’s right to privacy after

searching locker where employee used her own lock and employer didn’t require employee give it the combination

• Cannot require employees to submit to polygraph test– Except those reasonably suspected of involvement in a

workplace incident that resulted in specific economic loss or injury to employer

Page 42: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Reference Check Policies

Page 43: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Reference Checks• No Texas state or federal law that limits references

to dates of employment, last position held, and last salary– That is a best practice misconception

• Texas law protects employers from defamation lawsuits based on job references as long as employer does not knowingly report false information– AKA…unless “the information disclosed was known by that

employer to be false at the time the disclosure was made or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed”

Page 44: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Termination Policies

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Terminations• No Texas state or federal law requires advance

notice of termination• No Texas state or federal law requires an

explanation of reason for termination– EXCEPT: Fair Credit Reporting Act

• No Texas state or federal law requires written notice of termination– EXCEPT: FCRA and WARN

• “Job Abandonment” defined by each employer

Page 46: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Miscellaneous

Page 47: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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Miscellaneous• At-will employment statements coupled with

acknowledgements that include language such as “I agree to be bound by this handbook” could be interpreted as interfering with employees’ right to unionize– Better to have short and simple “I acknowledge receipt of

the handbook.”

• Be wary of confidential information policies as they may violate NLRB concerted activity protections

• Be careful with dress codes– Could implicate discrimination concerns

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So what does all this mean?

Page 49: Say What?!?! How your handbook differs from the law and is it helping or hurting you

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There is No One-Size-Fits-All Handbook

• Different companies need different handbooks

• Some companies may even need different handbooks for different parts of their workforce

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Create a More Valuable Handbook• Give a rationale for every policy and guideline in your

handbook

• Change from a scolding or “Thou shalt not…” mode to a friendly mode

• Be clear, concise, and straightforward in your policies and policy language

• Don’t be afraid of personality

• Only include those “must” policies

• Don’t just trust your employees to read the handbook, discuss it in detail with them

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QUESTIONS?

13601 Preston Road, Suite W870Dallas, Texas 75240

[email protected]

(972) 893-9341