This document summarizes key information from an employee handbook presentation. It discusses that an employee handbook is not legally required but can have benefits like clearly stating expectations and helping defend lawsuits. It provides examples of simplified handbook language from Tribune Co. and discusses policies around discrimination, leave, work schedules, drug testing, privacy, and terminations. The presentation emphasizes tailoring handbooks to individual company needs and including only essential policies that will actually be followed.

1. SAY WHAT?!?!
HOW YOUR
HANDBOOK DIFFERS
FROM THE LAW AND
IS IT HELPING OR
HURTING YOU
October 5-8, 2014
Fort Worth Convention Center

3. An employee handbook is
NOT REQUIRED
under any Federal or state
(Texas) law.

5. Tribune Co. CEO Sam Zell’s Handbook
• Reduced handbook from 11,519 words to
3,663
• Uses plain language and no legalese
• Opening Language:
– Rule #1: Use your best judgment.
– Rule #2: See Rule 1.

6. Sample Tribune Co. Handbook Language
Discrimination based on gender, age, race, religion, national origin, marital status,
sexual orientation, disability or any other characteristic not related to performance,
ability or attitude, protected by federal or state law, or not protected (such as inability
to tell a joke, the occasional poor wardrobe choice or bad hair day), is strictly
prohibited.
-----------------------------------------------------
Making the building too hot, banging on trash can lids or loud bagpipe music are
annoyances you can complain about, but such actions don't constitute harassment on
the basis of protected characteristics.
------------------------------------------------------
If you use or abuse alcohol or drugs and fail to perform the duties required by your job
acceptably, you are likely to be terminated. See Rule 1. Coming to work drunk is bad
judgment.
If you do not use or abuse alcohol or drugs and fail to perform the duties required by
your job acceptably, you are likely to be terminated.

7. So if I’m not legally required to
have a handbook and there are
companies that don’t have them,
do I need one?

8. Pros and Cons of Handbooks
PROS
• Clearly stated expectations
of employees
• Uniformity of policies
• Helpful in defeating UC
claims
• Helpful in defending
lawsuits
• Easiest way to disseminate
information to employees
CONS
• Inflexibility
• Failure to apply/utilize
policies
• Employee dissatisfaction
with imprecise or
incomplete language
• Creating lawsuits

10. So do I need a handbook or what?

11. Yes, but…

12. Only include those policies you
actually need and intend to follow.
AND…

13. Make sure your handbook is
compliant with the law.

15. Employee Threshold Levels for
Employment-Related Laws
• Race discrimination (federal)
– 1 employee (42 U.S.C. 1981)
• ADEA (federal)
– 20 employees
• All other forms of discrimination (state and federal)
– 15 employees
• Texas Payday Law
– 1 employee
• FLSA
– 1 employee (engaged in commerce)
• FMLA
– 50 employees

16. Anti-Discrimination Policies

18. The employer is an equal opportunity
employer. The employer will not
discriminate and will take measures to
ensure against discrimination in
employment, recruitment,
advertisements for employment,
compensation, termination, promotions,
and other conditions of employment
against any employee or job applicant
on the bases of race, color, age,
disability, national origin, or sex.

19. The employer is an equal opportunity
employer. The employer will not
discriminate and will take measures to
ensure against discrimination in
employment, recruitment,
advertisements for employment,
compensation, termination, promotions,
and other conditions of employment
against any employee or job applicant
on the bases of race, color, age,
disability, national origin, sex, or sexual
orientation.

20. Sexual Orientation Discrimination
• Not a protected category under federal or Texas
state law
– Despite the fact a Huffington Post poll found that 62% of
those polled thought it was against federal law to fire
someone for being gay or lesbian
• Protected category in Fort Worth
– City Ordinance 17-67 (First Texas city, 2000)
• Protected category in Dallas
– City Ordinance 46-6
• Protected category in Austin, Houston (as of 2014),
and San Antonio

21. EEO and Non-Discrimination
policies MUST be provided to
employees via a handbook or
policy statement or posted notice

22. The NLRB and Your Handbook

23. Employees are prohibited from discussing their salary
or wage levels and company benefits with other
employees. Such information is confidential and may
not be discussed in the workplace. Any employee
violating this policy will be considered to have
committed a breach of confidentiality and will be
subject to disciplinary action, up to and possibly
including termination of employment.

24. Employees are prohibited from making negative
comments about their employer on social media,
including in blogs and online forums.

25. Employee Discussions and Social
Media Policies
• Section 7 of the NLRB gives employees right to
engage in concerted activities, including discussing
terms and conditions of employment with each other
– Outlaws blanket prohibitions against employees discussing
company business or their jobs online on their own time
– This includes discussions about compensation and benefits

26. Employee Discussions and Social
Media Policies
• Employers still can prohibit discussions that take place
when employees should be working
– However, do not single out pay discussions
• Does not protect employee discussions if the
compensation and benefits information was obtained
improperly
• “Personnel information and documents” still a
violation
– Flex Frac Logistics LLC v. NLRB

27. Leave Policies

28. Family Medical Leave Act (FMLA)
• If you are subject to FMLA (50 employees or more), it is
one policy that MUST be provided to employees via a
handbook or policy statement or posted notice
• If you are not subject to FMLA, you could be required
to extend FMLA leave anyway if you promise it and
equitable estoppel conditions are satisfied
– Minard v. ITC Deltacom Communications
• Be wary of inflexible leave policies that call for
termination upon exhaustion of FMLA leave
– EEOC taking ADAAA enforcement action

29. Vacation and Sick Leave
• No Texas or federal law requires private employers
to provide paid or unpaid leave of any kind
– Absent FMLA leave or ADA/ADAAA reasonable
accommodation leave
• No Texas or federal law requires payouts of accrued
but unused paid leave
– However, see Texas Payday Law

30. Texas Payday Law
• Written promises regarding compensation, including
paid leave and payout of accrued but unused paid
leave, will be enforced as written
– Unenforceable under the Texas Payday Law if unwritten or
silent
• Applies to vacation pay, sick leave pay, parental
leave pay, holiday pay, and severance pay
– All considered “wages” under Texas Payday Law

31. Work Time Policies

32. Part-Time/Full-Time Status
• No Texas or federal law defining what constitutes
part-time or full-time status
• Perfectly legal to have one set of benefits (or none at
all) for part-time and a different set of benefits for
full-time
– Although certain laws may prescribe hours thresholds for
eligibility despite employer classifications
• i.e. ERISA (retirement/pension) and health benefits

33. Work Schedules
• No general Texas or Federal law limiting the number
of hours that an employee can work in any given day
– Exceptions related to certain industries, teenage workers,
collective bargaining agreements
• Overtime can be required (as long as it is properly
compensated)

34. Breaks
• No Texas or federal law requires employees to give breaks
during the workday
– If given, however, federal regulations apply
• i.e. 20 minutes or less are compensable, meal breaks not
compensable if at least 30 minutes and employee is “completely
relieved from duty for the purpose of eating a regular meal”
• One exception: 2010 health care reform law
– FLSA now requires employers to allow reasonable break times
for a nursing mother to express breast milk during first year
following birth of child
– Do not have to be paid
– Only apply to non-exempt employees
– Employers with less than 50 employees are exempt if break
would be undue hardship

35. Wage Deduction Policies

36. General Rules
• Under Texas Payday Law, all deductions from an employee’s
paycheck must be specifically authorized in writing
– Except payroll taxes, court-ordered garnishments, and other
deduction req’d by law or specifically authorized by statute
• Deductions which can drop an employee’s pay below minimum
wage:
– Wage overpayments
– Employee contributions for health insurance & retirement plans
– Loans and wage advances
– Union dues
– Court ordered garnishments and statutorily required attachments
– Cash shortages due to misappropriation (employer bears burden)
• Not permissible for ordinary negligence or losses due to damage, destruction,
or loss of equipment

37. Company Issued Credit Cards
• Purchases of items or services for personal use can
be considered loans or wage advances
– Can result in deductions below minimum wage
• Losses due to unnecessary or negligent purchases of
non-personal items cannot result in deductions
below minimum wage
• All must be authorized in writing by employee

38. Drugs in the Workplace Policies

40. Drug Testing
• No Texas state law or federal law prohibiting or
limiting private employers’ right to have drug and
alcohol testing policies
– Be aware of discrimination/ADAAA concerns
– So employees can be fired for refusing to sign policy or for refusing
drug test or refusing search
– Legal to test some, but not all employees
– Pre-employment testing at any stage OK (not a medical exam under
the ADAAA)
• Can require applicant to pay cost
• Absent specific industries or laws, no general Texas
state or federal law requiring drug testing
– For UC misconduct, must show policy, acknowledged receipt,
evidence of consent to testing, chain of custody, test documentation

41. Employee Privacy Policies

42. Must let employees know they have no
expectation of privacy in their use of
company premises, facilities, or resources
and are subject to monitoring at all times.

43. Employee Use of Computers,
Internet, E-mail, and Telephones
• Stengart v. Loving Care Agency (NJ Sup. Court)
– Invasion of employee’s privacy where policy was vague
regarding types of e-mails covered (personal vs. work) and
did not state use would be subject to monitoring
• Employers can record telephone calls but must
inform employees that monitoring may be taking
place
– Employers cannot continue listening to a telephone call
once the employer has established the call regards a
private matter
• But employee can be disciplined

44. Company Facilities
• K-Mart Corp v. Trotti
– Employer violated employee’s right to privacy after
searching locker where employee used her own lock and
employer didn’t require employee give it the combination
• Cannot require employees to submit to polygraph test
– Except those reasonably suspected of involvement in a
workplace incident that resulted in specific economic loss or
injury to employer

45. Reference Check Policies

46. Reference Checks
• No Texas state or federal law that limits references
to dates of employment, last position held, and last
salary
– That is a best practice misconception
• Texas law protects employers from defamation
lawsuits based on job references as long as employer
does not knowingly report false information
– AKA…unless “the information disclosed was known by that
employer to be false at the time the disclosure was made
or that the disclosure was made with malice or in reckless
disregard for the truth or falsity of the information
disclosed”

47. Termination Policies

48. Terminations
• No Texas state or federal law requires advance
notice of termination
• No Texas state or federal law requires an
explanation of reason for termination
– EXCEPT: Fair Credit Reporting Act
• No Texas state or federal law requires written
notice of termination
– EXCEPT: FCRA and WARN
• “Job Abandonment” defined by each employer

49. Miscellaneous

50. Miscellaneous
• At-will employment statements coupled with
acknowledgements that include language such as “I
agree to be bound by this handbook” could be
interpreted as interfering with employees’ right to
unionize
– Better to have short and simple “I acknowledge receipt of
the handbook.”
• Be wary of confidential information policies as they
may violate NLRB concerted activity protections
• Be careful with dress codes
– Could implicate discrimination concerns

51. So what does all this mean?

52. There is No One-Size-Fits-All Handbook
• Different companies need different
handbooks
• Some companies may even need different
handbooks for different parts of their
workforce

53. Create a More Valuable Handbook
• Give a rationale for every policy and guideline in your
handbook
• Change from a scolding or “Thou shalt not…” mode to a
friendly mode
• Be clear, concise, and straightforward in your policies
and policy language
• Don’t be afraid of personality
• Only include those “must” policies
• Don’t just trust your employees to read the handbook,
discuss it in detail with them

54. QUESTIONS?
Dustin A. Paschal
13601 Preston Road, Suite W870
Dallas, Texas 75240
www.SimonPaschal.com
Dustin@SimonPaschal.com
(972) 893-9341

55. Please remember to complete
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