Legal Updates

Start 2009 Off Right: Review And Update Your Employment Policies

February 2009 by Sara Goldsmith Schwartz

Each year at this time, we recommend that employers review their employment policies to ensure that they comply with all applicable changes in the law and accurately reflect current practices. Given that significant changes to numerous employment laws have recently taken place – and that further such changes are expected this year – such a review is especially critical.

In 2008 and early 2009, there were numerous changes in federal and state labor and employment laws that should be reflected immediately in personnel policies. For instance:

Revised regulations implementing the federal Family and Medical Leave Act became effective January 16, 2009. The revised regulations dramatically alter employers’ obligations in many key respects and require employers to modify existing leave policies and related documentation.

The Americans With Disabilities Act was amended for the first time since it was passed in 1992. The amendment, which greatly expanded the definition of disability and therefore the statute’s coverage, became effective January 1, 2009.

The federal Genetic Information Nondiscrimination Act became effective November 21, 2009. While many states already prohibited discrimination based on genetic information, this federal law established a new baseline across the country.

The EEOC issued a new Compliance Manual on Religious Discrimination. Shortly thereafter, the Supreme Judicial Court of Massachusetts held that an employer was required to modify its grooming policy to accommodate a Rastafarian whose religious beliefs prevented him from shaving or cutting his hair. The court ruled that it was a reasonable accommodation to excuse the employee from the employer’s grooming policy.

States continue to grapple with same-sex marriage and civil-union laws. California voters repealed that state’s same-sex marriage law, while Connecticut’s highest court ruled that limiting marriage to opposite-sex couples violated the Connecticut constitution. Employers should review their policies against the laws of each state in which they have employees to ensure compliance with these variations in state law.

Massachusetts has established May 1, 2009, as the deadline for complying with its new Data-Security Law. By this date, covered Massachusetts employers must have written security programs in place and ensure that their data-security technology complies with the new law. Massachusetts joins 38 other states that have some form of data-breach law.

Massachusetts employers should review their maternity and paternity leave policies to ensure that such policies do not give rise to gender or disability claims. While on its face the Massachusetts Maternity Leave Act only applies to female employees, the Massachusetts Commission Against Discrimination announced recently that it will accept claims alleging discrimination based upon employment policies that treat men and women differently with respect to maternity and paternity benefits.

As of July 13, 2008, Massachusetts employers became liable for mandatory treble damages for any violation of the Commonwealth’s payment-of-wages laws. This change in the law means that treble damages will be awarded once a violation is demonstrated, regardless of the employer’s good-faith efforts to comply with the law.

Small Massachusetts employers (those with fewer than six employees) must be mindful of a recent Supreme Judicial Court decision holding that employees may sue for employment discrimination under the Massachusetts Equal Rights Act, even if the employer has too few employees to be covered by the Massachusetts anti-discrimination law, known as Chapter 151B. This decision represents a potentially significant expansion of the Commonwealth’s employment-discrimination laws.

Lawsuits alleging wage violations continue to rise across the country. Employers should ensure that wage practices (such as exempt and non-exempt status, overtime pay, minimum wage, wage deductions, and meal and rest breaks) comply with both the federal Fair Labor Standards Act and the laws of each state in which the employer operates.

State variations in the enforceability of noncompetition agreements continue. California recently held that an employer cannot prevent a former employee from soliciting the former employer’s clients on behalf of a new employer. Texas and Oregon also issued decisions regarding noncompetition agreements that modified the law in each of those states.

Smaller localities, including the District of Columbia and San Francisco, now require employers to provide paid sick leave. San Francisco also enacted a new commuter benefit law.

California joined Connecticut, New Jersey, New York, Washington and the District of Columbia in banning the use of handheld cell phones while driving.

Employees’ online activities continue to impact the workplace. Employers should review their electronic-communications monitoring policies to ensure that they address employees’ blogs and online profiles, while not violating employees’ privacy rights and the right to engage in collective action.

Finally, it is time to review compliance with the Massachusetts health-care law and all affected policies to ensure compliance with the recent amendments to that law.

In addition to reviewing these changes in the law, employers should review their policies to consider the laws of any states into which they have recently expanded and to ensure that written policies comport with actual practices. Moreover, given the current economic climate, employers should review any severance policies, including less formal severance practices and guidelines, to determine if they need to be modified or replaced altogether.

The Firm has extensive experience in drafting employment policies, including multi-state employee handbooks and managers’ guides, across a wide range of industries and for employers of all sizes.

Please feel free to contact us for assistance in updating your organization’s employee handbook and/or managers’ guide, drafting your first employee handbook and/or managers’ guide, drafting or revising discrete policies, or developing training in regard to your organization’s employment policies.