It’s that time of the year again – when employers should reflect upon the previous year and revise employee handbooks and employee policy and procedure guidelines to ensure that they are compliant with the most recent interpretations of both federal and state employment regulations.

This can help employers reduce their risk of liability for future litigation, so long as employers also follow through with enforcement of such policies. Updating handbooks and policies can also benefit employers who wish to address changes in business structure and/or clearly set expectations and goals for both employees and the company as a whole.

Below are several key areas employers may wish to reexamine and improve in this upcoming year.

Anti-Harassment and Anti-Discrimination Policies

Headlines of LGBTQ discrimination swept the nation this year when the U.S. Supreme Court took up a trio of employment cases to decide whether employees can be terminated on the basis of their sexual orientation and/or gender identity.

With the anti-discrimination debate serving as such a hot button topic, 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 resulted in a split among the federal appellate circuit courts.

In October, oral arguments for the three landmark employment discrimination cases were presented to the U.S. Supreme Court, teeing up the issue of whether Title VII’s prohibition on discrimination because of sex includes discrimination based on sexual orientation and/or gender identity. The employees in each of the three cases (two gay men and a transgender woman) were all terminated because of their LGTBQ status. The Court’s ruling will greatly affect how narrow or broad Title VII’s protections expand.

Although the conflicting views on protection against sexual orientation and gender identity discrimination on a federal level have yet to be settled, 21 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:

Besides the above federal laws prohibiting discrimination, some states have taken the initiative to enact stricter laws based upon additional protected classes. Some examples of unique state-specific anti-discrimination workplace laws include:

  • Arizona: employers may not discriminate against users of medical marijuana based exclusively on such employees’ status as a registered medical marijuana cardholder or for testing positive on a drug test for marijuana, unless it would result in the employer losing money or licensing benefits under federal law(s);
  • Colorado: employers may not discriminate against an individual for participating in lawful activities outside of work, regardless of whether such perceived activity is disapproved of by the employer (i.e. attending social and/or political rallies);
  • Florida: employers may not discriminate against an individual based upon having the sickle-cell trait;
  • Michigan: employers may not discriminate against an individual based upon his or her height and/or weight.

While the above is a non-exhaustive list, it demonstrates the diverse array of anti-discrimination laws different states have. Therefore, it is important for employers to be aware of those laws in each state where their company has offices to ensure their handbooks are compliant with local laws.

Workplace Surveillance and Monitoring

As workplaces are becoming both increasingly mobile and virtual, employers are beginning to craft guidelines for computer and internet use while an employee is at work (or working on a company computer/laptop/phone). Such policies often forbid illegal internet use and prohibit employees from accessing websites with inappropriate content. Employers utilize email monitoring and website blocking to both encourage compliance with these “technology and internet use” policies and minimize a company’s litigation risk due to the integral role that electronic evidence now plays in all lawsuits.

Similar to this virtual or electronic monitoring, some employers have also turned to using GPS tracking on company vehicles, installing cameras at the workplace, and/or requesting employee cell phone records in an effort to manage worker productivity and security.

However, in light of the recent protests in Hong Kong and the home-security camera hackers that have made news headlines, employers are left wondering how much electronic surveillance and monitoring is too far? When are the privacy rights of employees being violated? How can employers still protect themselves from an employee’s internet, email, or social networking misuse while not crossing that line?

Under the federal Electronic Communications Privacy Act (“ECPA”), any property (including computer system, phone, email, etc.) that is provided to an employee by their employer is considered the property of the employer. As such, employers have the right to access and monitor any such company-provided property. For companies where BYOD (Bring Your Own Device) protocol is the norm, guidelines can be specifically crafted regarding appropriate use of an employee’s personal device(s). Any such policy should also include a protocol for removal of company property and information upon termination of employment.

Although there is no federal law preventing private companies from monitoring an employee’s phone, email, laptop, or computer use at work, companies that do so should have well-defined written policies or handbooks regarding an employee’s use of electronic devices. Additionally, such policies can clearly delineate and set employer expectations for an employee’s social media, internet, and phone use. Such transparency will not only put the employee on notice of what behavior is expected, but also serve to protect the employer’s interest if the policy is ever violated and adverse action needs to be taken against that employee. Several states (Delaware, Connecticut, New York, Massachusetts, Pennsylvania) even require companies to give mandatory notice to employees prior to any workplace monitoring. However, there are exceptions in circumstances to this mandatory notice requirement when an employer suspects employee misconduct.

Although Texas does not require notice of electronic monitoring to employees, employers should work to achieve a balance between the company’s legitimate business interests (i.e. security, worker productivity, etc.) and an employee’s right to privacy. Having an employee handbook that covers the topics of technology, internet/electronic use, expected worker conduct and productivity, while also notifying workers of the potential for reasonable workplace monitoring can greatly assist in achieving this balancing act.

Paid Sick Leave Notice

A new Earned Paid Sick Time Ordinance took effect this past August for those employers who have a minimum of 6 employees who work at least 80 hours a year within the Dallas city limits. Among other provisions of the new ordinance is an affirmative mandate requiring employers who provide employee handbooks to their employees to “include a notice of an employee’s rights and remedies under this chapter in that handbook.” Sec. 20-7(b). Dallas City Hall’s website provides sample employee handbook language that complies with this notice requirement on its website.

Because this notice requirement applies only to those employers who already presently circulate employee handbooks, it does not require employers who have no employment handbook to now create one.

In addition to the handbook notice, the ordinance also requires employers to post signage regarding the new ordinance in a visible location in their place of business. For a complete breakdown of the new ordinance requirements, along with continued updates regarding its enforcement, see our full post here.

Emotional Support and Therapy Animals

As there has been a spike in the number of individuals bringing emotional support or therapy animals on flights, airlines have tightened up their own requirements for tolerance of such behavior.

In the employment context, a similar issue can arise: is an employer required to allow an individual to bring an emotional support or therapy animal to work as part of a “reasonable accommodation” under the Americans with Disabilities Act (“ADA”)? The answer is no. There is an important distinction between service animals (i.e. those trained to perform either work or tasks for the benefit of a person with a disability) and a therapy or emotional support animal (those who provide support or therapeutic benefits to their owner, but have not been trained for a specific task like seeing-eye or seizure alert dogs have). The ADA’s definition of a service dog is not expansive enough to cover companion, therapy or emotional support animals.

Additionally, under the ADA only dogs (and sometimes miniature horses) can act as service animals that may be requested in the workplace as a reasonable accommodation. Conversely, therapy or emotional support animals can run the gamut – which is why we’ve all seen the news stories about individuals attempting to bring their emotional support peacock, iguana, lobster, and kangaroos on airlines.

However, even though companies may not be required to allow therapy or emotional support animals in the workplace, several companies (i.e. Google, Amazon, Etsy) have enacted their own “pet-friendly” workplace policies that permit well-behaved pets, regardless of an employee’s disability status, to accompany them to work.

Such pet-friendly policies allow all pets – whether service, emotional support, therapy, or simply companion. Prior to enacting any such pet-friendly policy, companies should fully weigh all considerations. If and when the decision is made to transition to a pet-friendly workplace, the company should have a clear pet policy requiring the employee/owner’s strict adherence to certain requirements such as:

  1. being in complete control of the animal at all times;
  2. bringing documentation showing up to date vaccinations;
  3. purchasing comprehensive liability insurance covering all injuries;
  4. signing an indemnification agreement; and
  5. providing a means to easily transport the animal out of the office in the event an issue arises.

For those employers who don’t have pet-friendly workplace policies, upon receiving a reasonable accommodation request for an employee to bring an animal in the workplace, employers should keep in mind that only requests for service animals need to be considered. Denial of emotional support or animal pets in the workplace is an employer’s right, even in the absence of a policy covering animals in the workplace. Further, if a request is made for a service animal, an employer may still deny such request if permitting the service animal in the workplace would create undue hardship. Therefore, reasonable accommodation requests generally will be determined on a case-by-case basis.

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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