Employee handbook updates recommended for 2011. Based on recent United States Supreme Court decisions, lower court rulings, workplace issues and employer problems. Prior update recommendations

1. 23 Employee
Handbook
Revisions for
2011
2011 © Alan J. Thayer, Jr. All
rights reserved.

2. Presented
as an educational service
by

3. Oregon Business Attorney
Alan Thayer

4. and

6. This information is presented as
an educational service. For legal
advice or answers to specific
questions, consult an experienced
lawyer.

7. Every year, we track new legislation, court
decisions, social changes, workplace issues
and important trends that can affect your
workplace.
“We keep track of We then recommend Employee Handbook
updates to our clients so they can stay on top
changes in of these developments. More importantly, we
employer liability help employers prevent costly employee
lawsuits.
issues so you do
not have to.”
We keep track of changes in employer liability
issues so you do not have to.

8. This year, we recommend 51 changes, set out
on 19 employee handbook pages, covering 23
different topics.
This includes employer protections in
response to two court cases where minimum
damages of $10,000 per employee may now
be authorized.
These 23 topics are presented here for your
information.

9. Proactive, take charge
employers will update their
employee handbooks
accordingly.

10. Workplace
Flexibility
It should go without saying that you can
modify the terms and conditions of
employment at your organization.
A federal court in Maryland and a state court
in Hawaii, however, have disagreed.
1
Many employees and state regulators now
seem to think of jobs as a vested right
regardless of performance or conditions.
Language should be added to your handbook
to preserve your right to modify jobs,
compensation and benefits to meet your
needs.

11. Temps to Hire
You should be aware of the legal dangers
created by probation periods for new
employees (DO NOT do this).
You can, however, hire new workers as
temporary employees.
2
This gives you time to evaluate before
promoting to a full or part time position.
Have language added to your handbook
describing this type of employee.
We will write more about this approach in a
future LegalBriefs newsletter.

12. No Work
No Holiday Pay
Do you want to pay holiday pay to employees
that are on extended leave (other than
vacations)?
3
This includes extended personal leave,
military leave and state and federal family and
medical leave?
This can be addressed with a revision to your
holiday pay policy.

13. No Work
No Vacation Pay
Do you want time spent on an extended leave
(other than vacation time) to count towards
vacation calculations?
4
This includes extended personal leave,
military leave and state and federal family and
medical leave?
If not, your handbook vacation policy can be
revised. But do so carefully.

14. Leave
Terminations
Employees often believe that they can not be
terminated when they are on state or federal
family or medical leave.
5
This is not true.
Handbook revisions can help you if it ever
becomes necessary at your organization to
layoff or terminate an employee on family or
medical leave.

15. Driving Safety
Do you know what your employees are doing
when they operate a motor vehicle on your
organization’s business?
Recent studies have shown the risks of driving
while distracted.
A survey just came out showing that texting,
6
emailing, eating, dressing (and undressing),
kissing, hair styling, applying makeup,
reading, writing, playing video games and
even sexual acts (15% of drivers) are occurring
behind the wheel.
Revise your handbook in response to these
revelations.

16. Attendance
Policy Trap
You can fall into a liability trap if an employee
you discipline for violating your attendance
policy later claims his or her problems were
7
caused by a disability.
You can head this off with a handbook
revision.

17. Pirates
& Wenches
Inappropriate costumes and outfits at parties
and in the workplace (think Halloween)
continue to cause problems for employers.
8 Additional handbook provisions should be
added.

18. Identity Theft
Workplace identity theft appears to be a
growing problem.
9
Handbook revisions should be added in
response.

19. Chewing
Tobacco
Do you really need to tell employees that
chewing tobacco is prohibited in buildings
10
and vehicles?
Evidently you do.

20. Social Media
Part 1
The Federal Trade Commission (FTC) adopted
a new “guide” aimed at online marketers that
can also ensnare employees that make
comments online and their employers.
11
Handbook provisions should be added to help
prevent FTC claims.
As discussed below, however, other federal
agency pronouncements are in conflict with
the FTC position.

21. Social Media
Part 2
Employers have a duty to prevent and correct
harassment.
There is no doubt courts will rule this includes
12
online threats, intimidation, bullying and
harassment.
Your interest in preventing this type of
conduct should be addressed in your
employee handbook.

22. Social Media
Part 3
The National labor Relations Board (NLRB)
apparently is not aware of the FTC’s concerns
or the risks of online harassment.
13
The FTC has taken the position that
employer’s guidelines on blogging and social
networking can constitute unfair labor
practices, even for employers that do not have
a union and are not currently the subject of an
organizing campaign.

23. The social media policy provisions discussed
above must be added with the new NLRB
position in mind.
Until the current or a future administration
develops coherent social media guidelines for
employers, you should have an experienced
lawyer help you walk this narrow line.

24. Employee
Generated
Content
Who owns online content relating to your
business created by your employees?
14
This is a very real question that a client and
numerous other businesses faced last year.
A proper handbook provision should be
added putting your employees on notice that
content relating to your business is a “work
for hire” owned by you.

25. Computer Care
You rely on employees to use common sense
to care for the computers they use.
How is that working?
15
Are there problems that you do not know
about?
Computer care expectations should be added
to your handbook.

26. Laptop Care
Yes, laptops are computers.
There are, however, additional tips employees
16
should follow to care for this important tool.
They should be added to your handbook.

27. Cell Phone Care
Even though cell phones have been around for
a number of years, misuse and abuse occur
every day.
Sometimes out of ignorance.
17
Other times out of errors in judgment.
Tips advising and reminding employees how
to care for phones you provide should be
added.

28. Federal Wire
Tap Act
It has been believed that a standard notice to
employees shielded employers from claims
under the Federal Wire Tap Act (a law aimed
at organized crime).
This act provides for minimum awards of
18
$10,000 or $100 per day of violation,
whichever is greater.
A new decision from the U.S. Court of Appeals
for the 7th Circuit and a recent decision by a
Texas Federal District Court changes
everything.

29. These rulings put employers at risk for a
minimum of $10,000 per employee, even
when there has been no damage.
Adding a notice provision to your employee
handbook is the least that you should do.
We found a simple way to also obtain an
affirmative consent from each employee that
should comply with the Federal Wire Tap Act.

30. Third Party
Retaliation
In January 2011, the United States Supreme
Court ruled that third parties can sue
employers for retaliation.
19 Best practices start with careful handbook
language.

31. Severance Pay
You are under no obligation to pay severance
pay to a departing employee.
However, in the right case, it can be a great
way to prevent problems and get a release
during layoffs or when terminating problem
20
employees.
If you have not done so already, add a new
provision making clear that severance pay is
not to be expected but is instead up to your
discretion.

32. Arbitration
You may be aware that Oregon adopted a
statute a few years ago limiting employers’
use of arbitration agreements.
That statute appears to violate the Federal
21
Arbitration Act.
One federal court has already agreed that is
the case.

33. If you can, you should comply with the
Oregon arbitration agreement statute
requirements.
If you can’t, you still should obtain
agreements to submit claims to arbitration.
Unfair labor practice claims, however, must be
excepted.
A handbook policy alone will not suffice.
We, however, have found a way you can have
employees agree to arbitration without
disrupting your workplace.

34. Employee
Questions
Would an employee claim they do not
understand one of your policies after you
discipline or terminate them for violating that
policy?
22
Of course they would.
A handbook provision should be added for
this very situation.

35. Reporting
Complaints
Last year, we recommended comprehensive
workplace complaint reporting procedures.
Of course, it is good to get early warnings of
problems before they turn into serious
liability risks.
23
The real purpose though is to head off after-
the-fact claims by terminated employees that
“oh yeah, something bad happened in the
past that I did not report and therefore I want
money.”
An additional reporting option should be
added to this policy.

36. Thats it!

37. 23 Employee Handbook
Revisions for 2011

38. For other employee handbook
update recommendations over
the last few years, go to
our Recent Employee
Handbook Updates summary.

39. For more tips and information,
subscribe to our free email
newsletter, LegalBriefs.

40. Oregon Business Attorney
Alan Thayer
welcomes your questions
and comments
541-345-2325 • www.thinkILG.com • alan@thinkILG.com

41. 541-345-2325 • www.thinkILG.com • alan@thinkILG.com