Get Real Policies Does Your Handbook Measure Up

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Get Real PoliciesDoes Your Handbook Measure Up?
MARION C. SMITH 100 East Wisconsin Avenue, Suite
3300Milwaukee, WI 53202414-225-2760mcsmith_at_mich
aelbest.com

• 2008 WLA Conference
• November 2, 2008

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EZEE Employer Handbook

• The Employer agrees to support, maintain,
  succor, feed, house, mother, marry, bury, clothe,
  analyze, psychoanalyze, and make whole each
  employee from cradle or date of hire (whichever
  comes first) to grave as well as furnish such
  benefits to all heirs, assigns, friends,
  relatives, neighbors, and other incidental
  acquaintances as may from time to time be
  selected by said employee.

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EZEE Employer Handbook

• In return, said employee agrees that s/he will,
  on special occasions selected solely at his/her
  discretion and without notice, perform certain
  small, menial productive tasks as may from time
  to time be necessary in order to maintain some
  semblance of employee-employer relationship
  except when for reasons beyond the control of the
  employee s/he reports in to the company in an
  exhausted state as determined by each individual
  employee, s/he will not them be required to
  perform any work whatsoever for whatever period
  of time required for recovery from such exhausted
  condition, as determined by each individual
  employee.

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Hard Core Employer Policy

• All employees will normally be granted 104 days
  off per year. These days shall be Saturday and
  Sunday.

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Overview Contents of Employee Handbook

• Policies General Employer statement on issues
  relating to wages, benefits, hours and conditions
  of employment?
• vs.
• Procedures Detailed statement of coverages or
  methods by which benefits are administered or
  policies are implemented?

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Top Policies For Consideration and Review

• Ethics or Code of Conduct Policy
• Anti-harassment and Nondiscrimination Policy
• Family Medical Leave Policy
• Benefit Eligibility Policy
• Work Rules
• E-mail, Internet and Other Electronic
  Communications
• Workers Compensation
• ADA

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Top Policies For Consideration and Review

• Ethics or Code of Conduct Policy
• Emphasis on core values, i.e. quality, customer
  service, etc.
• Emphasis on Mission
• Emphasis on strategy to achieve Mission
• Emphasis on General Principles which govern
  conduct at work
• Respect for law, policies, standards
• Honesty and courtesy
• Hard work and respect
• No personal benefit from Library
• No benefit for family or business associates
• Inappropriate use of facilities, resources and
  materials

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Top Policies For Consideration and Review

• Ethics or Business Conduct Policy
• Compliance with applicable governmental laws,
  rules and regulations
• The prompt internal reporting of violations of
  the code to an appropriate person and
• Accountability for adherence to the code.

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Top Policies For Consideration and Review

• Anti-harassment and Nondiscrimination Policy
• EEOC v. VJ Foods, Inc., No. 07-1009, Seventh
  Circuit Court of Appeals (November 7, 2007)
• Clear and understandable to every level of
  employee
• Statement of Policy on discrimination and
  harassment
• Identify protected classes
• Ensure that threats are covered
• Illustrate objectionable conduct (incl. Board
  members)
• Outline multiple avenues and optional personnel
  for complaints
• Strongly encourage prompt reporting

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Top Policies For Consideration and Review

• Anti-harassment and Nondiscrimination Policy
• Confidentiality statement to extent possible
• Ensure investigation
• Require cooperation in investigation
• Forbid retaliation
• Discipline Statement

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Top Policies For Consideration and Review

• Family Medical Leave Policy
• Employer Notices - 29 CFR 825.300
• any requirements for requesting leave including
  notice, duty of the employee to furnish medical
  certification and the consequences of failing to
  do so
• the employee's right to use accrued paid leave
  during FMLA leave, whether the employer will
  require the use of paid leave, and the conditions
  related to using paid leave
• any requirement and the process for the employee
  to make premium co-payments for maintaining group
  health insurance

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Top Policies For Consideration and Review

• Family Medical Leave Policy
• any requirement to present a fitness-for-duty
  certification before being restored to his/her
  job
• rights to job restoration upon return from leave
  
• employee's potential liability for reimbursement
  of health insurance premiums paid by the employer
  during the leave if the employee fails to return
  to work after taking FMLA leave and

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Top Policies For Consideration and Review

• Family Medical Leave Policy New Requirements
• General Eligibility
• Reasons for granting including
• Qualifying exigency due to active duty or call to
  active duty in Armed Forces (12 weeks total)
• Leave to care for health condition of member of
  the military. Up to 26 weeks in total
• Concurrent exhaustion
• State
• Federal
• Employer provided leave
• Other legally mandated leave, i.e., workers
  comp.
• State of Wisconsin Wis. Stat. 103.10(14)(b)

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Top Policies For Consideration and Review

• Benefit Eligibility Policy
• LeMaitre v. Massachusetts Turnpike Authority,
  Mass. App. Ct., Docket No. 06 P 0455 (November 5,
  2007).
• Promises contained in the previous versions of
  the policy were enforceable and that the rights
  accrued under the various versions of the policy
  could not be extinguished. In essence, a
  contractual obligation existed to pay the
  benefits as set forth in each version of the
  personnel policy that was in existence during Mr.
  LeMaitres employment tenure. The Authority was
  required to pay a substantially higher amount of
  sick leave benefits plus interest and costs.
• See also Loth v. City of Milwaukee, Ct. App.,
  December 27, 2007.

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Top Policies For Consideration and Review

• Benefit Eligibility Policy
• Wisconsin Statute 109.01(3) "Wage" or "wages"
  mean remuneration payable to an employee for
  personal services, and any other similar
  advantages agreed upon between the employer and
  the employee or provided by the employer to the
  employees as an established policy.

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Top Policies For Consideration and Review

• Benefit Eligibility Policy
• Define classes of employees, i.e. full-time,
  part-time, temporary, agency
• Identify specific benefit eligibility points
  (hours/months employed)
• Prorate benefits
• When do benefits terminate without or with notice
• Payments at severance voluntary retirement or
  termination

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Top Policies For Consideration and Review

• Work Rules
• Work rules are not a contract
• Very detailed vs. general comprehensive
  statements
• Performance expectations
• Policy adherence
• Unsafe activities/Security issues
• Illegal activities
• Attendance and absences

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Top Policies For Consideration and Review

• Consensual Relationships
• Title VII does not prevent employers from
  favoring certain employees because of personal
  relationships.
• Schobert v. Illinois Dept. of Transportation, 304
  F.3d 725, 733 (7th Cir. 2002) See also Preston v.
  Wisconsin Health Fund, 397 F.3d 539 (7th Cir.
  2005)
• To address the sexual harassment risk, adopt a
  conflict-of-interest policy that prohibits
  employees from engaging in any conduct that may
  create a conflict of interest or the appearance
  of a conflict of interest.

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Top Policies For Consideration and Review

• Consensual Relationships
• Define activities
• Identify reporting requirements
• Identify possible changes in reporting
  relationships
• Outline anti-harassment mechanisms
• Emphasize need to maintain good employee
  relationships
• Avoid creating document trail to which leads
  to/supports litigation
• Broad application

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Top Policies For Consideration and Review

• E-mail, Internet and Other Electronic
  Communications
• Many electronic devices
• Productivity issue
• Ethics issue
• Resources Issue

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Top Policies For Consideration and Review

• E-mail, Internet and Other Electronic
  Communications
• School teacher fired for viewing sexually
  explicit material on internet reinstated by
  arbitrator. Arbitrator concludes that viewing
  material for just over 1 minute, and selective
  enforcement justifies lesser penalty of written
  reprimand.
• Circuit court reversed the arbitrator on public
  policy grounds citing Wis. Stat. 115.13 which
  defines immoral conduct as conduct or behavior
  that is contrary to commonly accepted moral or
  ethical standards and that endangers the health,
  safety, welfare or education of any pupil.
• Cedarburg Education Association v. Cedarburg
  Board of Education, 2007 AP 52 certified to the
  Wisconsin Supreme Court on April 2, 2008

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Top Policies For Consideration and Review

• E-mail, Internet and Other Electronic
  Communications
• Objective of the Policy Security of Employer
  equipment and information.
• Maintaining High Productivity
• Ensuring Legal Use Only
• Ensuring Employer Access to Equipment and
  Information
• Maintaining Good Employee Relations
• Avoid Litigation in Creating a Document Trail
  Which Contributes to Litigation

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Top Policies For Consideration and Review

• E-mail, Internet and Other Electronic
  Communications
• Employer ownership access to information
  equipment
• No expectation of privacy
• Maintain high productivity
• Management of passwords
• Use conforms to all Employer policies
• No unauthorized access

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Top Policies For Consideration and Review

• E-mail, Internet and Other Electronic
  Communications
• Prohibited installations use
• Blogging prohibitions
• Zero tolerance on offensive, pornographic use
• Zero tolerance on illegal use, i.e., downloading,
  theft, personally identifiable information
• Protection of confidential information
• Notification of loss or theft of equipment
  immediately

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Workers Compensation

• Objective of the Policy
• Ensure Timely, Accurate Reporting
• Curb Abuse
• Ensure Safety and Health of Employees

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Workers Compensation

• Employees who are injured on the job must report
  injuries, no matter how slight immediately, to
  Human Resources.
• All employees who are injured on the job must
  have a doctors excuse for any absences. Medical
  restrictions must be documented by the employees
  treating physician and any updates promptly
  submitted to the Employer.
• Any misrepresentation for the reason for absence
  is grounds for discipline up to and including
  discharge.

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ADA Amendments

• Signed September 25, 2008
• Effective January 1, 2009
• Broadens definition of disability
• Whether an impairment substantially limits a
  major life activity may be without ameliorative
  effects of mitigating measures.

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ADA Amendments

• Disability means for this discussion
• Physical or mental impairment that substantially
  limits one or more major life activity
• Major life activities include but are not limited
  to caring for oneself, eating, walking, standing,
  seeing, hearing thinking, communicating,
  working.
• Impairments are not covered if transitory and
  minor i.e. with an actual or expected duration
  of 6 months or less.

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ADA Amendments

• However, impairment that is episodic or in
  remission can be a disability if it would
  substantially limit a major life activity when
  active.
• Mitigating measures may include medication,
  medical supplies/equipment, low vision devices
  (excludes ordinary glasses or contact lenses),
  prosthetics, hearing aids, oxygen, etc.

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ADA Amendments

• Policies which may be implicated
• Sick leave
• Leave of absence
• Hours of work
• Employee obligations
• Attendance policy
• Work assignment/transfers
• Broad job descriptions

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Overview Contents of Employee Handbook

• Introduction
• Welcome to the Company
• About Our Company
• Mission and Vision
• Ethics and Business Conduct Policy

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Overview Contents of Employee Handbook

• Employment
• At-will Employment
• Equal Employment Opportunity Policy
• Anti-harassment and Nondiscrimination Policy
• Disability Accommodation
• Reporting Relationships Employment of Relatives
• Orientation Program
• Performance Evaluations
• Job Posting/Internal Opportunities
• Access to Personnel Files and Data Changes

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Overview Contents of Employee Handbook

• Compensation Policies
• Benefits Eligibility and Classifications of
  Employment
• Work Hours
• Recording Work Hours Nonexempt Employees
• Overtime Pay
• Paydays/Safe Harbor FLSA

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Overview Contents of Employee Handbook

• Leaves of Absence Other Time Off Benefits
• Family and Medical Leave
• Military Leave
• Bereavement Leave
• Jury and Witness Duty Leave
• Voting Leave
• Vacations
• Holidays
• Personal Days
• Sick Days and Report

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Overview Contents of Employee Handbook

• Benefits
• Employee Benefits Program
• Basic Surgical and major Medical Insurance
• Dental Insurance
• Life Insurance
• Long-term Disability Insurance
• Workers Compensation
• Benefits Continuation (COBRA)
• Retirement Plan
• 401(k) Plan
• Employee Assistance Program

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Overview Contents of Employee Handbook

• Employee Conduct
• Personal Appearance and Demeanor
• Absenteeism and Tardiness
• Guidelines for Appropriate Conduct
• Consensual Relationships (Dating in Workplace)\
• Confidentiality of Information
• Ethics and Code of Conduct
• Conflicts of Interest
• Outside Employment

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Overview Contents of Employee Handbook

• Employee Conduct
• Workplace Searches
• Workplace Investigations
• E-mail, Internet and Other Electronic
  Communications
• Loss of Equipment
• Inappropriate/Illegal Conduct
• Identity Theft
• Cameras, Cell Phones and Recording Devices
• Solicitation and Distribution of Literature

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Overview Contents of Employee Handbook

• Employee Conduct
• Bulletin Boards including Electronic
• Smoking
• Drug and Alcohol Possession, Use and Testing
• Safety and Health
• Visitors in the Workplace
• Workplace Violence
• Termination of Employment

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Overview Contents of Employee Handbook

• Receipt for Handbook and Disclaimers
• Employee Received
• At-will Employment (mutual)
• Reserve Right to Change

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• QUESTIONS?