Monday, February 2, 2015

Five Policy Updates Employers Need to Make Right Now

Now that the office Super Bowl pool winners have been declared (excuse us, we mean “Big Game” so as not to violate any copyright laws), the holiday season is really officially over. While we slog through the rest of what has admittedly not been a bad winter season, it’s time to take a look at revisions to personnel policies in the new  year. 2014 brought new laws and trends which undoubtedly should cause employers to take a second look at their personnel policies and procedures to ensure that they remain current with the law. Here are five updates every employer should consider for the new year:

1. Pregnancy Discrimination and Accommodation.

The Illinois Human Rights Act was amended to afford pregnant workers protection against discrimination as well as require reasonable accommodations for a worker based on pregnancy. This applies to private as well as public employers alike who meet the threshold requirements of the Act. Employers should amend their policies to incorporate these protections and to adopt a procedure for employees to request accommodations. An accommodation policy and procedure can resemble that in place for workers with disabilities under the ADA.

2. Email Use.

As most employers are aware, the NLRB issued its Purple Communications, Inc., decision late last year which held that a wholesale prohibition on personal use of company email  by that employer was an unfair labor practice because such prohibitions unreasonably interfered with the employees’ ability to engage in concerted activities as defined by the National Labor Relations Act.  While this ruling does not apply to public employers, the State and Educational Labor Relations Boards, which enforce the public labor relations acts in Illinois, generally follow NLRB decisions. Employers should carefully review their email policies to ensure that they are not overly restrictive. Read more about how employers should conform with the Purple Communications decision here: Electronic Communications Policies in Light of Purple Communications

3. Social Media Use.

2014 was an active year for the NLRB in deciding cases about use of internet, specifically social media sites, to discuss employment matters among workers. The NLRB continued its trend in protecting these types of communications, even the derogatory ones, by workers on social media as concerted activity. Employers must closely review their social media and internet use policies to ensure that they are not overly restrictive (i.e. that they do not contain wholesale prohibitions on employees expressing their opinions about their work  or supervisors on social media). Needless to say, discussion among co-workers about their pay, a once common employer restriction is also prohibited. One bright spot for employers on this subject last year was the NLRB finding that a social media discussion between employees and former employees on how they would harm the employer was not protected by labor laws.

4. Texting

In 2010, the Occupational Safety and Health Administration (OSHA) issued a letter to  employers stating that it is their “responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving.”  OSHA also said that any company that requires or encourages employees to text while driving is in clear violation of the Occupational Safety and Health Act. OSHA accordingly urges employers to create and enforce policies that prevent distracted driving. These policies, by both private and public employers, should cover any time that an employee is engaging in a work activity, regardless of whether it is during scheduled work hours or off hours.

5. Anti-Bullying in the Workplace

Formal workplace policies recognizing and prohibiting bullying behavior in the workplace is more of a trend than actual law so far. Trends have a way of becoming law, though, and if private and public employers want to recruit and retain a top notch workforce, they will incorporate this prohibition in their policies. It is clear that bullying or harassing behavior by co-workers and supervisors that is not prohibited by TitleVII or similar state laws, still can cause emotional harm to the victim and result in low morale and reduced productivity among workers. See Darcy Proctor’s advice on how to prevent this in your workplace here: Workplace Bullying – Part I and Workplace Bullying – Part II

As we often remind our clients, employers can do nothing which will guarantee that an employee, ex-employee or candidate for employment won’t sue them. Up to date policies and practices, though, reduces the chance of these types of claims, and ensures that employers have good defenses should they be sued. So, 1/12th of the new year is already gone; it’s time to update your policies.