The turn of the year is often a good time to review company policies. We’re weighing in with some favorite perennial professional resolutions and perhaps a few new suggestions that might make for a happy 2014. 
What’s in a policy?
In the employment world, issues involving e-mail, the Internet, and social media are changing dramatically. For a long time, we suggested that employers develop a policy that set standards for appropriate e-mail communications and Internet use, particularly to prevent e-mails from becoming a fertile source of evidence for claims of wrongful termination, discrimination, and harassment and to protect your company’s confidential information.
Social media polices. In recent years, we’ve seen what we thought were reasonable expectations and standards for appropriate e-mail, Internet, and social media postings (e.g., prohibitions on disparaging, inappropriate, demeaning, or unprofessional statements or on the disclosure of confidential information like wages and other employment-related information) run afoul of the National Labor Relations Board’s (NLRB) views on employer policies that impermissibly chill, or dissuade, employees from communicating or exercising their rights to engage in protected concerted activity.
To start the new year, take another close look at your e-mail and social media policies. Does your policy provide specific guidance so employees will know what they can and cannot do and you don’t unintentionally chill their rights to engage in protected concerted activity? Are the prohibitions appropriate, or do they infringe on communications the NLRB considers protected concerted activity?
You can read articles on this topic on the HR Hero blog Technology for HR.
While you’re at it, what else is in your handbook?
Beyond social media policies. It is not only a good idea to review policies that are currently the subject of scrutiny―such as social media policies and employment- at-will statements―but it’s also a prudent measure to review all the policies in your handbook on a regular basis. When was the last time you reviewed your handbook and read your policies with a critical eye? Are your policies up to date? Are they still working well for you? Has your company changed size, and do you have different legal obligations as a result? An annual review is still recommended, and you might schedule it for the beginning of each calendar year.
Recent NLRB guidance has given us a reason to look beyond social media policies and examine many other standard policies to see whether they unduly restrict employees’ rights to engage in protected concerted activity. Does your handbook’s employment-at-will policy provide for the possibility that someone in your organization can sign an agreement that recognizes a union or a labor contract, establishes a term of employment, or modifies the employment-at-will standard?
Code of conduct. Would your code of conduct policy pass NLRB muster? The Board has shown concern that provisions prohibiting employees from engaging in activity that might “raise questions as to the company’s honesty, impartiality, reputation or otherwise cause embarrassment” or “create a conflict of interest for [employees] or the company” and a provision requiring employees to “follow all restrictions on use and disclosure of information” might impermissibly chill their rights to discuss the terms and conditions of their employment.
Internal investigations. Do you have a blanket prohibition on employees discussing investigations during the course of an inquiry? The NLRB also has expressed concerns about such policies. Finally, you should make sure your dress code, confidentiality, and nondisparagement policies aren’t too far-reaching in their restrictions.
FLSA safe harbor. Exemptions from the Fair Labor Standards Act’s (FLSA) overtime requirements for executive, administrative, and professional employees can be destroyed if you make improper deductions from their pay (i.e., deductions inconsistent with them being paid on a salaried basis). However, there’s a “safe harbor” for employers that mistakenly make improper deductions if you (1) have a “clearly communicated” policy prohibiting improper deductions, including a complaint mechanism, (2) reimburse employees for any improper deductions, and (3) make a good-faith commitment to comply in the future. An FLSA safe-harbor policy should be included in your employment handbook.
FMLA leave. If you haven’t reviewed your Family and Medical Leave Act (FMLA) policy in a while, you’ll need to make sure it covers recent changes in the law allowing new military-related leave. Your policy should include provisions addressing military caregiver leave and qualifying exigency leave.
Harassment and discrimination. All employers need to include an antiharassment and discrimination policy in their handbooks. Older antiharassment policies often prohibit only sexual harassment. Your policy should cover harassment based on sex, race, national origin, disability, age, religion, and any other protected category under federal or state law. Also, “genetic information” is now a federally protected category, so you should ensure your policies address discrimination based on genetic information.
Arbitration agreements. Arbitration agreements should be binding contracts, so they must be separate from employment handbooks. Nevertheless, it’s a good idea to review your arbitration agreements when you’re updating your employment handbook. Recently, the NLRB ruled that it’s an unfair labor practice to require employees to arbitrate class action claims. The ruling hasn’t been tested by the courts yet, but if you have an arbitration agreement that includes class claims, consider revising it.
Computer, Internet, and e-mail usage. With the prevalence of technology in the workplace, it is a good idea to consider whether you should have policies addressing employees’ use of technology.
If you’ve been meaning to review and update your handbook, the beginning of the new year could be a great time to read your policies with a critical eye.
What about job descriptions?
It may be too big a task to review and update all your job descriptions at once, so you often hear that employers update job descriptions when they’re hiring for a particular position. The downside of that approach is that current and accurate job descriptions can be helpful even when you haven’t had any turnover.
Think of the last time you looked at the “essential functions” of a job while considering an accommodation request or another issue involving the Americans with Disabilities Act (ADA) when there had been no reason to look at the job description for a few years. Perhaps 2014 is a good time to schedule a systematic review and update all your job descriptions over the course of the year.
What would you like them to know?
Yes, we’re talking about supervisor training. Is there any training that could make HR management at your company easier in 2014? For example, would training your managers on the company’s expectations about the issues and decisions that should be discussed with HR before an adverse action is taken help you address issues proactively and avoid risky situations later? Would training on the importance of timely, accurate, and well-prepared performance documentation reduce management frustration and the number of times you can’t address performance concerns the way you might like to because you don’t have the documentation to support your actions?
If you answered yes―or even maybe―to those questions, why not come up with a list of topics you wish your supervisors knew more about and put together a training schedule for 2014? And then, while you’re at it, come up with a list of things you would like to know more about and see what you can do to further your own personal training.
Bottom line
We wish you luck and success with your New Year’s resolutions.
Be sure to call your employment law attorney if you have questions about any of the issues mentioned in this article. As always, we wish you a happy, safe, and prosperous 2014.
Jeanine Poole is an attorney with Sulloway & Hollis in Concord, New Hampshire. She may be contacted at jpoole@sulloway.com