Legal Updates

2015 Is Here! Time To Review And Update Your Employment Policies

As we do each year, we have compiled a list of the updates and revisions we recommend for employee handbooks as a result of developments in labor and employment law and best practices during the past year. We encourage you to add these updates and revisions to your to-do list for 2015.

Domestic Violence Leave: Massachusetts now requires employers with 50 or more employees to provide unpaid leave for various purposes related to domestic violence (e.g., to obtain medical care, receive counseling, attend legal proceedings, or obtain housing).

Paid Sick Leave: Effective July 1, 2015, Massachusetts employers with at least 11 employees (including full-time, part-time, casual, and temporary employees) will be required to provide each employee with up to 40 hours of paid sick leave per year. Smaller employers will be obligated to provide the same amount of sick leave on an unpaid basis.

In addition, two other states (California and Connecticut), as well as a number of cities (including D.C., New York, Seattle, Philadelphia, and San Francisco) have enacted similar paid sick leave laws. Multi-state employers are encouraged to review all applicable paid sick leave requirements to ensure full compliance.

Parental Leave: As detailed in another article in this Update, the Massachusetts Maternity Leave Act was recently amended, effective April 7, 2015, to cover male as well as female employees. The amendment also provides for other changes to the statute, including expanded job restoration rights.

NLRB Issues: 2014 was another busy year for the National Labor Relations Board (“NLRB”). The NLRB continued to invalidate employer policies dealing with such matters as social media; rules prohibiting insubordination or disrespect; restrictions on use of company logos and insignia; confidentiality; and at-will employment. We encourage all employers – both union and non-union – to take a closer look at such policies to determine whether they need revision in light of the NLRB’s aggressive enforcement agenda.

Religious Accommodations: In response to an increase in religious discrimination claims, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance last March regarding religious accommodations in the context of personal appearance (i.e., dress and grooming) policies. The EEOC’s guidance is an important reminder to all employers that state and federal laws require reasonable accommodations for employees’ religious beliefs. We recommend that all employers carefully review their handbook policies related to personal appearance (as well as leaves of absence) to ensure that such policies address requests for reasonable accommodations by employees with sincerely held religious beliefs.

COBRA/ACA:  Now that the ACA (a/k/a Obamacare) Health Insurance Marketplace is up and running, employees who separate from employment have two options for health insurance: (i) continuation coverage under state and federal COBRA laws, and (ii) new coverage through the Marketplace. However, there are important differences between these options, and departing employees can be caught short as to which option is better for them. It is very important for all employers to understand this important overlap between the ACA and COBRA and the differences between departing employees’ health insurance options. In addition, employers should be aware that there is an updated model COBRA notice form that addresses these options.

Electronic Communications:  With the increase in wearable technology and employees’ continued preference for personal devices, it is time to dust off your Electronic Communications policies to ensure that they deal with “Bring Your Own Device” (“BYOD”) issues, as well as wearable technology.

Intellectual Property:  We have seen an increase in litigation dealing with post-employment restrictions, such as non-competition and non-solicitation covenants. Also, even when such formal covenants do not apply, employers that hire new employees from competitors often face claims such as aiding and abetting the breach of these employees’ fiduciary duties and misappropriation of trade secrets.  To minimize the risk of getting unwittingly caught up in such lawsuits, we encourage all employers to consider adopting a policy that explicitly prohibits employees from using the proprietary information of prior employers.

Bullying Policies: There continues to be a significant public focus on the issue of bullying in the workplace. While no state specifically requires employers to adopt a no-bullying policy, California has taken the first step in that direction by requiring employers to address “abusive” conduct when doing harassment training. Although many employers prohibit “inappropriate” conduct, this may not be explicit enough to curb bullying behaviors.  We encourage all employers to take a close look at their conduct policies to ensure that there is broad language prohibiting conduct that is offensive, even if the conduct does not rise to the level of unlawful sexual or other harassment.

Leave Issues: We continue to see significant confusion regarding the overlap of Family and Medical Leave Act (“FMLA”) and maternity/parental leave policies. Given the recent increase in litigation regarding pregnancy, such confusion can create exposure to liability for employers.  This is a great time to take a closer look at your FMLA, pregnancy, and maternity/parental leave policies to ensure that they are clear and fully comply with applicable state and federal law.

Gender Identity:  If you have not already done so, it is time to update your list of protected characteristics to include gender identity.  The EEOC has filed its first transgender lawsuits and has made clear that preventing discrimination based on sexual orientation and gender identity is a top enforcement priority.

General: In addition to the issues identified above, multi-state employers should be sure to address changes in the laws of all states in which they operate.

As a reminder, when you update your employee handbook to address the issues identified above, don’t forget to retain a copy of your prior handbook. Employee handbooks are often essential evidence in employment litigation, and we encourage all employers to keep prior versions for several years. (In addition, under the Massachusetts personnel records law, employers with 20 or more employees are required to retain written personnel policies.)

Although we believe it is crucial to update employment policies annually, we also know that updating your organization’s employee handbook each year can be a daunting task. We want to help! We would be happy to audit your current handbook and make specific recommendations about updates and revisions. Please contact us for more information about our handbook audit process, or if you have questions about any of the issues identified above.