Every employer is well advised to have a written employee handbook consisting of a written compilation of rules, standards and
policies governing the management of the employer’s human resources. Employers should carefully consider their business, legal, employee relations and general objectives for creating an employee handbook, and then treat it as a living document, conducting an annual review and update. An employee handbook should be put in writing, communicated to all employees, applied consistently and be easy to read.
Within the previous five (5) years Massachusetts has enacted a litany of new employment related legislation, including, but not limited to: (i) leave to address domestic violence, G.L. c. 149, § 52E ; (ii) earned sick time, G.L. c. 149, § 148C; (iii) the expansion of maternity leave to include gender neutral parental leave, G.L. c. 149, § 105D; (iv) the equal pay law, G.L. c. 149, § 105A; (v) paid family and medical leave, G.L. c. 175M; and (vi) the pregnant workers fairness act, G.L. c. 151B, §4. If your employee handbook has not been updated recently, it likely does not have policies on some or all of these laws.
This year will continue to present unprecedented challenges as employers continue to deal with remote work and the impact of the COVID-19 pandemic. As employers navigate these uncertain times, it is even more critical to have a well-written employee handbook as the foundation of the employer/employee relationship. If your employee handbook does not have policies on all of the following, then it is time for an update:
- · Equal employment opportunities
- · Anti-harassment and discrimination (Massachusetts law requires employers with six or more employees to adopt a written policy against sexual harassment)
- · Reasonable accommodation
- · Federal Family and Medical Leave Act
- · MA Small Necessities Leave
- · MA Paid Family and Medical Leave
- · MA Parental Leave
- · MA Earned Sick Time
- · MA Domestic Violence Leave
- · Concerted activities under section 7 of the National Labor Relations Act
- · Nursing mothers
- · Rules of conduct and discipline
- · Attendance
- · Benefits and compensation, including vacations, holidays and sick time
- · Drug testing
- · Criminal background checks
- · Termination
- · Bulletin boards
- · Non-solicitation
- · Technology
- · Social media
Additionally, employers should distribute a COVID-19 addendum to their employee handbook effective until vaccines have been widely distributed and regular work practices are resumed. Employers should consider including amended policies on leave, vacation, travel, remote work/teleworking and emergency contingency plans. For example, an employer may implement temporary policies on how remote work is to be conducted, evaluated and shared; expectations on the hours and times an employee is expected to be available; how hourly employees are to record and report hours in order to comply with the Fair Labor Standards Act; what an employee should do if exposed to COVID-19; expectations for safety outside of the workplace; policy on business travel; when travel plans should be reported and to who; or the employer’s quarantine requirements after an employee has traveled out of state, whether for business or pleasure.
An employee handbook must match practice and is useless if not enforced. Managers and supervisors should be trained on the policies in the handbook and be prepared to enforce them. For employers with operations in more than one state, the employer should provide employees with state-specific employee handbooks. Employers should consider having different handbooks for different groups of employees (i.e., restaurant managers v. floor staff, construction office v. field staff, etc.).
Unfortunately, we often see employment related litigation and find that the company’s employee handbook was poorly written, frequently adapted from a generic internet download, former company, or a friend. Different laws apply to different size employers, and an employee handbook needs to incorporate both federal and state specific laws. Employers should collaborate with experienced legal counsel when drafting their handbook and use an organized system to distribute the employee handbook, obtain signed acknowledgment of receipt forms from employees and maintain those forms in case they ever need to be relied upon.
Bobby
Rudolph represents individuals and businesses in complex commercial litigation
matters. His cases involve issues related to business, employment, real estate
and construction. Bobby is a trusted advisor on pre-litigation issues,
regularly appears in court and has successfully resolved a range of matters
through alternative dispute resolution. He can be contacted at rrudoph@rflawyers.com.
