Time after time, your success in court depends on your policies. Either an employee claims you violated your policy, or you claim the employee did. In either case, the policy is exhibit A, and it’s likely to be dissected line by line. Are your policies ready?
How do you best ensure that your HR policies will hold up in court? BLR® experts offer five tips to bulletproof policies and the handbooks that present them:
Tip 1: Be Aware (and Beware) of State Laws
Many employers are caught in lawsuits where the employer’s policy complied with federal laws, but neglected to consider the impact of relevant state laws.
There are countless ways in which state and federal law overlap and diverge. Here are several of the most common:
Antidiscrimination
The federal antidiscrimination laws protect employees in organizations with 15 or more employees (Title VII and ADA), 20 or more employees (ADEA), or regardless of employer size (USERRA).
In comparison, most states have established antidiscrimination laws that cover employers with anywhere from one employee (e.g., Alaska, Colorado, and Michigan) to 12 employees (e.g., West Virginia).
Protected Classes
Under federal antidiscrimination law, employees are protected because of sex, race, ethnicity, age, national origin, disability, and service in the armed services.
A majority of states have moved to expand the protected classes of employees, adding sexual orientation and gender identity (e.g., Illinois, Maine, and Washington); use of lawful products (smoking) (e.g., California, Colorado, and Connecticut); genetic discrimination, HIV/AIDs, and/or sickle-cell trait (e.g., Arizona, Iowa, Kentucky, Maine, and North Carolina); arrest, conviction, and military records (e.g., California, Maryland, and Michigan); and marital status (e.g., Alaska, Illinois, Montana, and Nebraska) to name just a few.
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Leaves of Absence
A number of states have adopted state-specific FMLA-type laws that generally follow the federal FMLA, with a few exceptions critical to employers in those states. For example, Connecticut allows for 16 weeks of protected family leave in a 24-month period (versus 12 weeks in a 12-month period under federal FMLA).
In addition, many states have adopted medical leave provisions for organ and bone marrow donation and blood donation (e.g., Arkansas, Connecticut, Illinois, Minnesota, and New York); leave for crime victims (e.g., California, Colorado, and Oregon); and leave for school visitation or other family obligations (e.g., California, Illinois, North Carolina, and Vermont).
Wage and Hour Provisions
The federal Fair Labor Standards Act (FLSA) is often supplemented by state laws regarding minimum wage, overtime, and meal or break periods. For example:
Overtime. Many states have chosen to diverge from the federal minimum overtime requirements for all hours worked in excess of 40 hours per week. For example, Alaska state law requires overtime for hours worked in excess of 8 hours per day. Some states have legislated overtime requirements for specific industries in which overtime is frequent. For example, in New York, all hours worked by “resort employees” on the seventh consecutive workday are paid at an overtime rate.
Meal or break periods. The federal FLSA does not regulate meal or break periods. As a result, many states have stepped in and created their own rules. State provisions usually specify the number of hours that an employee must work to qualify for a break.
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Tip 2: Make a Policy, Not a Contract
Depending on the specific facts of a case, state courts throughout the country have ruled that policy wording in employee handbooks may, in some circumstances, create a contract between employer and employee.
In this climate, you must treat your handbook that explains your policies as a quasi-legal document; and for this reason, it is best to seek an attorney’s advice in drafting the language.
Get Signatures
All workers should be asked to sign an acknowledgment that they have received and understand the policies in the handbook.
In tomorrow’s Advisor, more tips, and an introduction to a unique program that helps you bulletproof all your HR-related policies.