Employee handbooks and employee policy and procedure guidelines are important tools for employers to reduce their risk of liability for future litigation. However, for employers to have maximal protection, their policies and procedures should reflect the most recent updates and changes in employment regulations.

The beginning of the new year is the perfect time to revisit and update old policies to ensure that employee handbooks are compliant with the most recent interpretations of both federal and state laws. Below are several key areas employers may wish to reexamine and improve in this upcoming year.

Anti-Harassment and Anti-Discrimination Policies

As sexual harassment news continues to sweep the nation, employers should confirm that their employee handbooks have clear zero-tolerance policies for sexual harassment and discrimination, along with several avenues for employees to report workplace complaints (i.e. allow for reporting to both the employee’s supervisor as well as to a Human Resources representative or the company’s officers/executives). In addition, employers should ensure that their employee handbooks and policies cover all unlawful types of harassment and discrimination.

Under Title VII of the Civil Rights Act, harassment and discrimination based upon any of the following protected categories is prohibited:

  • Race
  • Color
  • Religion
  • Sex, and
  • National Origin.

Title VII’s prohibition of discrimination “because of such individual’s … sex” has been a point of contention and its interpretation in recent years has resulted in a circuit split among the federal appellate courts. Currently, the United States Supreme Court is set to decide whether it will consider three employment discrimination cases to determine the issues of whether Title VII’s prohibition on discrimination because of sex includes discrimination based on sexual orientation and/or gender identity.

Although the conflicting views on protection against sexual orientation and gender identity discrimination on a federal level have yet to be settled, 20 states, the District of Columbia, and many local governments, have laws explicitly prohibiting discrimination based on sexual orientation and/or gender identity. While Texas is not one of these states, companies that have offices located throughout the country may wish to consult with an employment law attorney to ensure their handbooks reflect the state and local anti-discrimination laws where each office is located.

In addition to Title VII, other federal statutes prohibiting discrimination based upon protected categories include the:

Paid Parental Leave

Many employers have policies offering paid leave for mothers following childbirth. However, if such policies include additional paid time off (beyond that which is required for the mother to recover from childbirth and any related medical conditions), then employers must also offer such “bonding” leave time to fathers.

The U.S. Equal Employment Opportunity Commission (EEOC) has previously issued enforcement guidance on this issue and declared that an employer’s policy that does not provide leave for parental bonding time with a new child to both men and women on equal terms is discriminatory and in violation Title VII. Therefore, it is important for employee handbooks and policies regarding post-childbirth leave to distinguish between leave provided for medical recovery purposes and that provided for bonding purposes.

Any parental leave time provided for bonding purposes must be offered to men and women equally, while leave provided for pregnancy and medical related recovery purposes need only be offered to the new mother. Thus, to avoid having to make this distinction between medical leave time and bonding leave time, some companies have begun offering generalized “parental leave” to all employees to bond with a new child.

Arbitration Agreements and Class Action Waivers

The United States Supreme Court’s decision in Epic Sys. Corp. v. Lewis earlier this year presented a huge win for employers who wish to use mandatory arbitration agreements to prevent employees from bringing work-related claims as joint or collection action lawsuits.

In Texas, courts generally will uphold arbitration agreements contained in a company’s employee handbook. Thus, after this year’s decision in Epic Systems, employers should revise their arbitration agreements and provisions to include language waiving the individual employee’s right to participate in a class action lawsuit for any claim arising out of or relating to such employee’s employment – meaning that any individual who pursues an employment-related claim against the company must do so in an individual arbitration.

Importantly, for Texas employers who choose to include an arbitration agreement within its employee handbook, if the language of the agreement or the handbook gives the company unilateral right to change the terms of the agreement, then the arbitration provision must also contain a “savings clause” stating that:

any change of the arbitration policy will not be made without advance notice to the employee;
any change of the policy applies only to claims arising after such change; and
change applies equally to both employee and employer claims.

Texas courts have previously held that arbitration clauses in employee handbooks that do not contain such a savings clause are illusory and thus unenforceable.

Employers should also keep in mind that to be valid, an arbitration agreement must be supported by adequate consideration (a promise for a promise). Therefore, if a company currently does not have an arbitration agreement but wants to include one in its newest revised employee handbook, such a clause must include a mutual agreement to arbitrate claims (which Texas courts have held provides sufficient consideration to support the agreement).

Lastly, to put employers in the best position of having their arbitration agreements be upheld and enforced, there should be an employee acknowledgement provision below the arbitration clause where the employee can sign, acknowledging that he or she has read and agrees to be bound by such policy.

Technology and Internet Use Policy

As our workplaces are becoming increasingly virtual, employers should update guidelines for computer and internet use while an employee is at work (or working on a company computer/laptop/phone).

At a minimum, such a policy should forbid illegal internet use and prohibit employees from accessing websites with inappropriate content. In addition, technology policies can address cell phone etiquette while employees are on the clock as well as appropriate social media use.

Companies with BYOD (Bring Your Own Device) practices should update guidelines for appropriate use of personal devices for company business, as well as removal of company information upon termination of employment.

When crafting social media policies, employers should be aware that under the National Labor Relations Act (NLRA) employees have a right to participate in concerted activity with regard to working conditions and employee wages.

The federal agency charged with enforcing the NLRA – the National Labor Relations Board (NLRB) – has taken the position that such protection of concerted activity extends to certain work-related discussions that take place on social media. Thus, according to the NLRB, company policies that would be “reasonably construed” to restrain employee conversations about wages and working conditions are a violation of the NLRA so any disciplinary action taken against an employee for violation of such a policy is unlawful.

Because of this, employers should ensure that their social media policies are not so broad as to prohibit activity protected under the NLRA, such as the right to discuss wages and working conditions among employees. Generally, employee remarks on social media are not protected by the NLRA if they are mere complaints not made in connection with group activity among workers.

Drug Testing Policies

Although courts have generally considered medically prescribed marijuana to be an “illegal use of drugs” that is not federally protected by the Americans with Disabilities Act, some states have established laws requiring employers to provide accommodations for such medical marijuana use or prohibiting employers from discriminating based on an individual’s status as a medical marijuana card holder.

To comply with this expanding trend, multi-state companies should include language in their drug testing policies indicating that the company will comply with all applicable laws in the jurisdiction where the office is located.

These suggestions make up only a small portion of what should be included and addressed in an employee handbook. Yet, these important revisions allow employers to remain compliant with their legal obligations under Title VII and other state/local employment laws.

Any updated employee handbook or policies should also always include a disclaimer that such new policies are meant to supersede or trump former policies that may be in conflict. Once a revised handbook or policy is created, it should be announced and distributed to all employees in the company. Handbook acknowledgements should also contain language affirming the at-will nature of employment with the company, disclaiming any intent to create an employment contract.

For assistance with workplace matters, contact Clouse Brown PLLC. Our attorneys are available to assist employers and business owners in drafting company handbooks and policies and provide advice on how to properly enforce them.

Keith Clouse

About Keith Clouse

Keith Clouse is an employment law specialist with over 25 years of experience representing senior-level and C-suite executives, business owners, physicians, and corporations in complex employment litigation, arbitration, and negotiations. High-level business executives, physicians, and other professionals consistently rely on Mr. Clouse for employment law expertise and advice on employment contracts, covenants not to compete, severance agreements, equity awards, trade secret disputes, and breach of fiduciary duty claims. He is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. He can be reached at keith@clousebrown.com.

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