Is it time to revise your employment policies handbook?

It is no mean feat to keep track of all the legal developments affecting your company’s employment policies or employee handbook. Updating the employee handbook is a task that is forever being put off as a result.
However, it’s critical to periodically update your employment policies and handbook, even if it’s probably true that a revised handbook may soon be outdated in one respect or another because of the ever-evolving law.
While your newly revised handbook will never be the last word, your company will be better served by addressing the gaps and bringing the policies up to date. You shouldn’t wait for a lawsuit to remind you of the need to make sure your company’s employment policies reflect the latest developments in technology, law and risk management.
Below are some warning signs your company’s employee handbook may need of some immediate attention.
1. Your policies have not been revised to account for the Goodrich decision granting equal marriage rights to same sex couples in Massachusetts.
The Massachusetts Supreme Judicial Court’s 2003 decision in Goodrich v. Dept. of Public Health has altered the landscape for policies ranging from health benefits to bereavement leave. In particular, many companies have modified their longstanding policies regarding domestic partners in light of the doctrine of marriage equality. Of course, unless your company employs only Massachusetts residents, the issues can become quite complex as you try to be fair and consistent across state lines.
2. Your computer use policy has not kept up with the latest in technology.
As reflected in recent headlines about the online financial message board postings by the CEO of Whole Foods, Inc., it is not always possible to craft a policy that anticipates the next new way how employees can use or misuse company computers. Think of the Boston area physician who abruptly settled a malpractice claim when plaintiff’s attorney confronted him on the witness stand about his rather irreverent blog postings concerning the trial and the jurors.
Whether listservs, instant messaging, chat rooms, blogs or the old standby of e-mail, there seems to be no end to the challenges faced by human resources managers in trying to craft the appropriate balance between enabling innovation and communication on the one hand, and preventing legal problems (from sexual harassment to insider trading, defamation and loss of critical intellectual property) on the other.
3. Your handbook’s “disclaimer” is so boilerplate and familiar that your employees don’t even notice it.
Recent decisions highlight the importance of highlighting the disclaimer by which you remind employees that, despite the provisions of the handbook, they are at-will employees and that you reserve the right to unilaterally amend, revoke and interpret the handbook. Absent prominent placement (for example printing the disclaimer in large type on a different color paper than the rest of the handbook), all that legalese may not be worth the paper (or pixels) it is written on.
4. Your IT department has provided employees tools not envisioned by the policies in your handbook.
Most companies have policies alerting their workers they should have no expectation of privacy in anything they type on the computer on their desk. But a recent decision highlighted the importance of ensuring your company’s policy does not stop with that general admonition. If your employees are using their work computers to access their “personal” Yahoo or AOL accounts, or are accessing your network from home or the road, it is wise to specifically warn that the rules on use of the “office” computer apply in these contexts as well. The same is true of PDAs, Blackberries and other mobile devices.
5. Your policies haven’t kept up with the latest in cell phone technology.
Camera phones, text messaging and GPS devices are among the new features on your employees’ cell phones that might have implications for your personnel policies. Each of these technologies raises issues for your policies on protection of intellectual property, harassment in the workplace and privacy.
6. Your handbook does not reflect the latest legal developments concerning off-work conduct.
Some companies have longstanding policies regulating or addressing what their employees do outside of work. Whether health-related policies (such as those designed to promote wellness), or policies regarding conduct that would embarrass the company, your handbook may have policies that unlawfully intrude into areas of your workers’ lives courts have held fall within a zone of privacy.
7. You have a sexual harassment policy, but no policy prohibiting other forms of illegal harassment.
Many employers still have their original boilerplate policy barring sexual harassment in the workplace. However, as companies that have been on the wrong end of any number of recent cases can attest, it is not only harassment on the basis of gender that can lead to a large jury verdict. As a result, handbooks should prohibit harassment on the basis of any protected class – and should include definitions and examples as they do for sexual harassment.
8. Your handbook still reads like Enron never happened.
Companies of all sizes have been reviewing and revising the full range of “compliance” policies. The new compliance environment has broad implications for employee handbooks – from rules regarding financial transactions and reporting, to protections for whistleblowers and those who cooperate with investigations whether internal or external.
9. Your handbook was drafted before workplace violence and safety became the serious concerns they are today.
Whether addressing weapons in the workplace or protocols for evacuation and emergency operations plans, many handbooks are somewhat outdated in this area. The same is true regarding the increasingly prevalent issues raised when an employee is either restricted by (or protected by) a restraining order issued in the context of allegations of domestic abuse or violence.
10. Your policies on leaves of absence do not reflect the latest mandates under state and federal law.
Whether it is the Massachusetts Small Necessities Leave Act or the latest guidance on intermittent leave under the Family and Medical Leave Act, your company needs to be sure its handbook is up to date. In fact, many claims of disability discrimination could be avoided by policies that reflect the latest case law regarding reasonable accommodations (including the provision of unpaid leaves of absence in appropriate circumstances).
11. Your classifications of employees as “exempt” for purposes of overtime – and definition of “independent contractors” – are out of date.
The last few years have brought significant changes in the landscape for “exempt” status under the Fair Labor Standards Act. Massachusetts employers have seen even more dramatic restrictions on their ability to lawfully characterize individuals as “independent contractors.” Handbooks that fail to reflect these new realities are problems waiting to happen.
Paul Holtzman serves as co-chair of the Labor & Employment Section of the Boston Bar Association. He is an advisor to the American Law Institute on the inaugural Restatement of Employment Law. A partner at Krokidas & Bluestein LLP in Boston, his practice includes trial work, alternative dispute resolution and preventive advice to employers, all focused in the areas of employment law, wage and hour disputes, sexual harassment and other civil rights issues.