July 31, 2018

I. Introduction

Today, an increasing number of employers use employee handbooks to communicate policies ranging from vacation and sick leave to harassment and equal employment opportunity. Handbooks provide both employees and management with an objective written document reflecting the company’s expectations and procedures. Having such guidelines and procedures may help a company deflect any appearance of arbitrariness in its discipline of employees. On the other hand, policies contained in handbooks, if not consistently followed, may be used to support employees’ claims of unfair or discriminatory treatment. For example, an employee who is terminated for violating the company’s absenteeism policy may contend that he or she was discriminated against because another employee who violated the exact same policy was not disciplined. Although properly drafted handbooks provide employees with instructions regarding the company’s expectations, even the best handbooks are of little benefit to employers when they are not consistently enforced.

Similarly, dated or poorly drafted handbooks may pose potential problems for employers, especially when the handbook provides erroneous information about the employer’s legal obligations or establishes rigid policies that may rise to the level of an employment contract. For example, employers commonly have written progressive discipline policies that the employer promises to follow in making disciplinary decisions. Other language often contained in employee handbooks, such as “must,” “shall,” and “will,” may also create contractual obligations for employers. Handbooks with these and similar oversights may unwittingly convey promises to employees that rise to the level of employment contracts. In such cases, employers may alter employees’ at-will status.

II. Potential Topics to Cover in Handbooks

The following is a list of policies that employers may consider including in their existing employee handbooks or using in the creation of new handbooks. Handbooks, however, are not “one size fits all.” Each company has its own business needs and employee atmosphere and culture. The following provides some guidelines regarding which policies may be appropriately included in the handbook:

DRAFTING MUST-HAVE POLICIES

Although employers are not required to have a handbook, if they do have one, there are some “must-have” policies to include. These are:

• EEO Policy
• Anti-Harassment
• At-Will or Nature of Employment Policies
• Contract Disclaimers
• FLSA Safe Harbor
• Family and Medical Leave (for employers with 50 or more employees)
• Maternity Leave (TN for employer with more than 100 employees)
• Internet and Email Usage
• Vacation Time Payout at Termination

Equal Employment Opportunity (EEO) Policy

Every employer needs an EEO Policy. This policy generally states that the employer will not make decisions based on any protected class. It should list all protected classes under state, federal and local laws. Additionally, the policy will need to have a contact person/position with contact information to allow employees to report any claims of discrimination. This contact information should be the same contact information used in the company’s Anti-Harassment Policy.

Anti-Harassment Policy

The proliferation of harassment policies should come as no surprise to any employer. Harassment, however, is difficult to define precisely because it is subject to interpretation by various courts, the Equal Employment Opportunity Commission, and state human rights commissions. A properly drafted harassment policy can go far toward protecting employers from the uncertainty of sexual harassment law.

In the 1998 cases Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, the Supreme Court set forth the standard of liability used to determine whether an employer may be held vicariously liable for the harassing activities of its supervisory employees. The Court held that where the employee is subjected to a “tangible employment action,” as a result of the harassing behavior, the employer will automatically be held vicariously liable for the harassment and the only remaining question is whether and to what extent money damages will be awarded. The phrase “tangible employment action” is defined as an action that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Although both Ellerth and Faragher involved alleged sexual harassment, the Court noted that the tangible employment action standard has been applied in race, age, and national origin discrimination cases as well.

In situations where no tangible employment action has been taken against the employee, an employer may raise an affirmative defense to liability or damages resulting from harassment. The defense is comprised of two elements, both of which must be proven by a preponderance of the evidence if the employer is to avoid liability: (1) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

Under the first prong of the affirmative defense, the employer may present evidence that it previously disseminated an effective anti-harassment policy as compelling proof of its efforts to prevent workplace harassment. One court has described an effective anti-harassment policy as “comprehensive, well-known to employees, vigorously enforced, and providing alternative avenues of redress.” In Sconce v. Tandy Corp., a Kentucky federal district court considered the employer’s anti-harassment policy effective where the employer provided every new employee with an Employee Handbook which specifically stated that sexual harassment is discrimination and considered a violation of company policy. The handbook and the employment manual together described types of conduct that would not be tolerated and directed employees to submit complaints to one of three offices, including the Director of Employee Relations, and provided an address.

Since the Supreme Court decisions in Faragher and Ellerth, numerous decisions have addressed the adequacy or inadequacy of employers’ evidence regarding the first element of the affirmative defense. In Clark v. U.P.S. (2005), the Sixth Circuit surveyed some of these cases and defined broad guidelines for an effective anti-harassment policy. It stated an effective policy will at least: (1) require supervisors to report incidents of harassment; (2) permit both informal and formal complaints of harassment to be made; (3) provide a mechanism for bypassing a harassing supervisor when making a complaint; and (4) provide for training regarding the policy.

These broad guidelines alone, however, are insufficient. The following cases exemplify what several federal courts have found to be appropriate responses to promptly correct and prevent harassment.

In Shaw v. Auto Zone, the court found the company had established the first part of the affirmative defense where it had adopted an anti-harassment policy that was distributed to all employees. The policy clearly stated sexual harassment would not be tolerated and provided alternative mechanisms for resolving complaints. Importantly, the policy allowed the complaining employee to “circumvent the supervisory chain of command.” In addition to the anti-harassment policy, the court pointed out that Auto Zone also regularly conducted training sessions for its managers on issues of sexual harassment. These facts, according to the court, clearly established that Auto Zone met the first prong of the affirmative defense.

In Brown v. Perry, the court found the employer had met the first prong of the affirmative defense with its anti-harassment policy. The court cautioned, however, that merely enacting such a policy was not enough in all situations. The policy “must be both reasonably designed and reasonably effectual.” The court also found the employer had taken reasonable care to prevent further harassment. When the employee first raised concerns regarding inappropriate conduct, the Company suggested she contact an EEO officer. The Company also prohibited the alleged harasser from contacting the employee, and, after an investigation, suspended the alleged harasser for 30 days. As the Brown court noted, however, having a policy does not guarantee the employer will meet the first prong of the affirmative defense. Consider the case of Smith v. First Union Bank, in which a female employee filed a charge of sexual harassment against her supervisor. Shortly after the employee began working at the bank, the supervisor warned her that if she “ever wanted to get anywhere, [I’d] never contradict anyone in an open meeting, and [I’d] never complain to human resources.” The Fourth Circuit Court of Appeals refused to dismiss the employee’s claim on the basis of the affirmative defense stating, “employers cannot satisfy the first element of the Faragher- Ellerth affirmative defense if its management-level employees are discouraging the use of the complaint process.”

At-Will or Nature of Employment Policy

At-Will or Nature of Employment Policies generally state that an employee does not have a right to continued employment. The employee’s employment is at-will, meaning it can be terminated at any time, with or without notice, and for any reason – as long as it is not a discriminatory reason. Likewise, an employee may quit their employment at anytime with or without notice and for any reason. As simple as this policy seems, it has been coming under fire from the NLRB in the last few years. In 2012, the NLRB issued two Advice Memorandums centered around two employees’ claims that their employer’s handbook violated Section 8(a)(1) of the NLRA. The first employer’s handbook language stated, “no representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship.” The second employer’s handbook stated similar language, restricting employees from entering into an agreement for employment for a specific term other than at-will. Both employees claimed these handbook provisions violated the NLRA. In their complaints to the NLRB, both employees alleged that the language was overbroad and would reasonably “tend to chill” employees in their exercise of Section 7 rights. In rejecting these claims, the NLRB stated that any language that potentially violates the NLRA cannot be read in isolation, and instead, must be considered in context. These at-will handbook policies above did not explicitly restrict the employees’ rights to change their at-will employment status through an organized union. Taking the analysis a step further, the NLRB stated that employees could not reasonably construe the language to prohibit Section 7 activity, because the employees did not offer any evidence that the policies were created in response to union activity, and the employees did not offer any evidence that the policies had been applied to restrict the exercise of Section 7 rights.

The Advice Memorandums went on to distinguish these two handbook policies from an earlier case which raised concerns among employers about the liability of at-will disclaimers. In American Red Cross Arizona Blood Services Region, the ALJ found that the employer violated Section 8(a)(1) by requiring employees to sign an acknowledgment of their at-will status stating, “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” The ALJ held that the signature requirement and the use of the personal pronoun “I” was essentially a waiver of the employee’s right to “advocate concertedly to change his/her at-will status.” Here, this situation differs from American Red Cross because this language does not restrict the two employees from allowing someone else to bargain on their behalf. Instead, the language discussed in the Advice Memorandums was simply language to reinforce the employers’ unambiguously-stated purpose of its at-will policy. In fact, the NLRB went on to state that it was common for employers to rely on these at-will policy provisions as a defense against potential legal actions by employees asserting that the employee handbook creates an enforceable employment contract, to not hire or fire an employee “at-will”.

Contract Disclaimers

Generally, courts have been reluctant to imply contracts from employee handbooks, especially when employers insert protective language. In Whittaker v. Care- More, Inc., two former employees claimed that their discharges violated a provision of an employee handbook. The employees contended that the following provision in the handbook created a just cause requirement for discharge:

An employee may reasonably expect uninterrupted employment year in and year out. Any employee doing his work in a satisfactory manner and working for the good of the organization has little to fear about job security.

Specifically, the employees argued that the company’s language provided them a specific term of employment and thus excluded them from being employees at-will. The court found that the handbook contained “no guarantees or binding commitments.” In addition, the court pointed to language contained in the company’s employment application signed by the employees that stated that employment could be terminated by either party upon two weeks’ notice. Accordingly, the court dismissed the employees’ wrongful discharge claim.

Employers, accordingly, should include disclaimers in their employee handbooks stating:

• The handbook can be changed at any time without notice to employees;
• The statements in the handbook are guidelines only and are not intended as promises or a contract; and
• Nothing in the handbook alters the application of the employment at-will doctrine.

Improper Salary Deduction Policy

The Fair Labor Standards Act has long required salaried employees, with few exceptions, to receive their full salary for every week in which they perform any work.

Employers have been limited to making deductions only for:

• Absences of one or more full days for personal reasons;
• Absences of one or more full days due to sickness or disability where –

o The deductions are made in accordance with a bona fide plan, practice, or policy that provides compensation for lost salary resulting from sickness or injury; or

o Before the employee has qualified for paid leave under a sickness or disability plan or after she has exhausted her paid leave under such plan; or

o If salary replacement benefits are provided under a state disability insurance or workers’ compensation law.

• To offset any amounts received for serving on a jury, as a witness, or in the military;
• Employees can be paid a proportionate part of their salaries during their initial and terminal weeks of employment;
• As a penalty for violation of a major safety rule; and
• Unpaid absences, even for less than a day, taken pursuant to the Family and Medical Leave Act.

The law’s limited exceptions to the prohibition on disciplinary deductions, however, created an inequity regarding disciplinary deductions from pay. Employers could suspend non-exempt employees accused of some form of workplace harassment (i.e., sexual harassment) without pay pending an investigation while an exempt employee in the same situation was entitled to his or her pay. The new regulations change this. Where an employer has a written policy permitting disciplinary pay deductions applicable to all employees, the employer may dock the pay of exempt employees for unpaid disciplinary suspensions of one or more days imposed in good faith for violation of workplace conduct rules.

This has three parts: (1) a written policy permitting disciplinary deductions; (2) the good faith imposition of a disciplinary suspension of one or more days; and (3) workplace conduct rules the violation of which underlies the suspension. In light of this new regulation, employers should attempt to draft written policies covering as many potential problem areas as possible.

If the employer has promulgated a written policy applicable to all employees allowing deductions from pay for engaging in sexual harassment, the employer can suspend an employee who, for example, sexually harasses a co-worker and dock his or her pay for the suspension period. Not surprisingly, more serious violations can justify longer suspensions. As an example, the regulations state an employer might suspend an exempt employee without pay for three days for violating a sexual harassment policy but might suspend an exempt employee without pay for 12 days for violating a policy prohibiting workplace violence.

The suspension must be imposed “in good faith for infractions.” This standard likely is satisfied when an employer has cause based on a reasonable investigation to believe the employee violated the applicable work conduct rule. The regulation seems to suggest an employer must undertake an investigation prior to suspending the employee. A more expeditious practice, however, likely would be to tell the subject of the investigation he is being suspended without pay pending the investigation but that he will be reimbursed his full salary if the investigation finds no wrongdoing.

FMLA Policy

In implementing the FMLA, the DOL enacted regulations requiring that employers spell out in the employer’s employee handbook or policy manual employees’ rights and obligations under the FMLA. DOL regulations state:

If an FMLA-covered employer has any eligible employees and has any written guidance to employees concerning employee benefits or leave rights, such as an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other document. For example, if an employer provides an employee handbook to all employees that describes the employer’s policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer’s policies regarding the FMLA.

An employer’s written FMLA policy should contain information informing employees of the following:

General Purpose of the FMLA

The FMLA was enacted in response to the growing concern of discriminatory practices involving medical leave and to help balance the increasing demands of the family and the workplace.

Employee Eligibility

In order to qualify for leave under the FMLA, an employee must have:

(1) worked at least 12 months with an employer;
(2) achieved 1,250 hours of service with the employer during the previous 12-month period; and
(3) work at a location where 50 or more employees are employed by the employer within a 75 mile radius of the worksite.

FMLA Qualifying Reasons For Leave

An eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during a 12-month period for any one, or more, of the following reasons:

• for the birth and care of a newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for a spouse, son, daughter, or parent with a serious health condition;
• to take medical leave when an employee is unable to work because of a serious health condition;
• for qualifying exigencies arising out of the fact the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation; or
• for care of a service member who is a spouse, son daughter, parent or next of kin of a current member of the Armed Forces, including members of the National Guard or Reserves, with a serious injury or illness (26 weeks).

Benefits Continuation

An employee’s employment benefits may not be changed because the employee takes FMLA leave. “Employment benefits” are all benefits the employer provides or makes available to employees, including:

• group life insurance;
• health insurance;
• disability insurance;
• sick leave;
• annual leave;
• educational benefits; and
• pensions.

These benefits are considered employment benefits whether they are provided under an employee benefit plan, under a written policy, or by practice.

Reinstatement Rights

Any eligible employee who takes FMLA leave is entitled upon return from leave to be restored to the position he or she held before going on leave or, alternatively, to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. The DOL regulations define an “equivalent position” as a position “that is virtually identical to the employee’s former position in terms of pay, benefits, working conditions, including privileges, prerequisites and status.”

To be equivalent, the position also must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. An employee is entitled to reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence. Under certain circumstances, however, an employer may deny restoration to certain highly paid “key employees.” Key employees include salaried eligible employees who are among the highest paid ten percent of the employees employed by the employer within 75 miles of the facility where the employee is employed. In order to deny restoration to a key employee, the employer must make a good faith determination based on available facts that denial is necessary to prevent substantial and grievous economic injury to the operations of the employer. The employer must also notify the employee of its intent to deny restoration on such basis at the time the employer determines that such injury would occur. If the employee is already out on leave at the time the employer makes the determination, the employer must provide the opportunity for the employee to choose between returning to work or continuing the leave knowing restoration will be denied.

Relationship Between the FMLA and State Leave Laws

Nothing in the FMLA supersedes any provision of state or local law that provides greater family or medical leave rights than those provided by the FMLA. However, if leave qualifies as FMLA leave and leave under state law, the leave benefit provided by the FMLA can run concurrently with the state leave benefit. FMLA Qualifying Absences Will Not Be Counted Against An Eligible Employee For Any Reason

The FMLA makes it unlawful for any employer to interfere with, restrain, or deny an eligible employee from exercising or attempting to exercise any right provided under the FMLA. In its’ regulations, the DOL has interpreted this prohibition to include counting any FMLA qualifying absence as against an eligible employee under an employer’s attendance policies, including a “no-fault” absenteeism policy.

Military Exigency Leave

Eligible employees may take up to 12 work weeks of unpaid, job-protected leave during any 12-month period for qualifying exigencies that arise when the employee’s spouse, son, daughter, or parent is on a covered active duty or has been notified of an impending call or order to covered active duty.

Covered active duty means:

• for members of the Regular Armed Forces, duty during deployment of the member with the Armed Forces to a foreign country; or
• for members of the Reserve components of the Armed Forces (member so the National Guard and Reserves), duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in support of a contingency operation.

Deployment to a foreign country includes deployment to international waters. Qualifying exigencies for which an employee may take FMLA leave including making alternative child care arrangements for a child of the deployed military member, attending certain military ceremonies and briefings, or making financial or legal arrangements to address the military member’s absence.

Military Caregiver Leave

Eligible employees may take up to a total of 26 work weeks of unpaid, jobprotected leave during a single 12-month period to care for a covered servicemember with a serious injury or illness. The employee must be the spouse, son, daughter, parent, or next-of-kin of the covered service member.

A covered servicemember is either:

• A current member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is on the temporary disability retired list, for a serious injury or illness, or
• A veteran of the Armed Forces (including the National Guard or Reserves) discharged within the five-year period before the family member first takes military caregiver leave to care for the veteran and who is undergoing medical treatment, recuperation, or therapy for a qualifying serious injury or illness. A veteran who is dishonorably discharged does not meet the FMLA definition of a covered servicemember.

For a current servicemember, a serious injury or illness is one that was incurred in the line of duty on active duty and may render the servicemember medically unfit to perform his or her military duties. For a veteran, a serious injury or illness is one that that was incurred in the line of duty on active duty and rendered the veteran medically unfit to perform his or her military duties, or an injury or illness that qualifies the veteran for certain benefits from the Department of Veterans Affairs or substantially impairs the veteran’s ability to work. For veterans, it includes injuries or illnesses that were incurred or aggravated during military service but that did not manifest until after the veteran left active duty.

Calculation of 12-Month Period

An employer is permitted to choose any one of the following methods for determining the “12-month period” in which the 12 weeks of FMLA leave entitlement occurs:

(1) The calendar year;
(2) Any fixed 12-month “leave year,” such as a fiscal year, a year required by state law, or a year starting on an employee’s “anniversary” date.
(3) The “rolling” 12-month period measured forward from the date an employee’s first FMLA leave begins; or
(4) A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

If an employer fails to select one of the above options for measuring the 12-month period, the option that is the most beneficial outcome for the employee will be used. Whichever method is selected, an employer must apply the method consistently and uniformly to all employees. An employer wishing to change to another alternative method is required to give at least 60 days notice to all employees, and the transition must take place in such a way that employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee.

Any Employee Notice Requirements (Time/Manner)

Employers may require employees provide at least thirty (30) days advance notice before the requested leave is to begin if the need for leave is foreseeable. In circumstances where the need for leave is not foreseeable, employees must give notice as soon as practicable. In cases where the need for leave is foreseeable but thirty (30) days notice is not possible, the employee must provide notice within one or two business days of when the employee became aware of the need for leave.

An employee requesting FMLA leave need not expressly assert rights under the FMLA or even mention the FMLA by name. Employees need only give the employer verbal notice sufficient to make the employer aware that the employee needs FMLA qualifying leave and the anticipated timing and duration of the leave. Employers may not require employees to specifically request FMLA leave.

Any Medical Documentation Requirement For Serious Health Condition Of Parent, Spouse, Child, Or Employee

When an employee requests leave for medical purposes, an employer may require that the employee’s health care provider furnish certification substantiating the employee’s need for leave. In the case of leave to care for the employee’s spouse, child, or parent with a serious health condition, employer may require that the health care provider of the employee’s spouse, child, or parent provide certification substantiating whether the employee’s spouse, child, or parent requires assistance for basic medical or personal needs, safety, transportation, or whether the employee’s presence to provide psychological comfort would be beneficial to the spouse’s, child’s, or parent’s recovery. Consequences Of Failure To Timely Return Medical Documentation As previously stated, an employer may require an employee provide medical certification substantiating his or her need for FMLA, generally within 15 days. If an employee fails to provide the required medical certification within this time period after being properly notified of the requirement and the employee has no reasonable justification for not providing the certification, an employer may delay the employee’s taking or continuing FMLA leave until the required certification is provided. If proper notice is given to the employee concerning the certification requirement and the employee does not produce the certification, the leave is not FMLA leave and the employee is not entitled to the benefits and protections of the FMLA.

Any Recertification Requirements

Employers may require employees to provide recertification verifying the employee’s continued need for FMLA leave. The conditions under which an employer may request subsequent recertification of a medical condition depend on the particular circumstances. An employer generally may not request recertification any more often than every thirty (30) days. If the minimum duration of the period of incapacity specified on the certification furnished by the health care provider is more than thirty (30) days, the employer may not request recertification until the minimum duration has passed. An employer may request earlier recertification if:

• The employee requests an extension of leave;
• The circumstances described by the previous certification (e.g., the duration or frequency of absences, the severity of the condition, complications) have changed significantly; or
• The employer receives information that casts doubt on the employee’s stated reason for the absence.

Employees are responsible for shouldering the cost of any recertification required by the employer, unless the employer provides otherwise.

Any Requirement For Return-To Work Or Fitness-For-Duty Statement

An employer may have a uniformly-applied policy or practice that requires similarly situated employees (i.e., same occupation, same serious health condition), who take leave for their own serious health condition, to obtain and present a certification from the employee’s health care provider that the employee is able to resume work. An employer may seek a fitness-for-duty certification only with respect to the particular health condition that caused the employee’s need for FMLA leave. The certification will be considered sufficient if it provides only a simple statement of an employee’s ability to return to work. Restoration of the employee to employment may be delayed until the employee submits the required fitness-for-duty statement.

Substitution of Paid Leave (Employee’s Choice or Employer’s Requirement)

Generally, FMLA leave is unpaid. However, the FMLA permits an eligible employee to choose to substitute accrued paid leave (vacation leave, personal leave, and/or sick leave) for FMLA leave or employers may require the employee substitute accrued paid leave to cover some or all of the FMLA leave taken. An employer’s company policies would govern such leave.

Limitations on Intermittent Leave for Birth, Adoption, or Placement of a Child with the Employee for Foster Care

Employees are eligible to take FMLA leave on an intermittent basis when the leave is medically necessary to care for a seriously ill family member, or because of the employee’s own serious health condition. However, employees may take leave on an intermittent basis to care for a newborn or newly placed adopted or foster care child only with the employer’s approval. An employer has no obligation under the FMLA to approve of the use of intermittent leave to care for a newborn or newly placed adopted or foster care child.

If Qualifying Workers’ Compensation Absence Will Count as FMLA Leave
An employee may be on a workers’ compensation absence due to an on the job injury or illness that also qualifies as a serious health condition. The workers’ compensation absence and FMLA leave may run concurrently, subject to the employer providing proper notice and designation of the leave as FMLA leave. Any Restrictions on Leave for Married Couples (Same Employer)

Fathers and mothers may take FMLA leave for the birth, placement for adoption or foster care of a child. However, spouses employed by the same employer may be limited to a joint combined total of 12 work weeks of family leave for the birth and care of a child, the placement of a child for adoption or foster care, and to care for a parent with a serious health condition. Congress vested authority in the Department of Labor to develop regulations to carry out the FMLA. These regulations are not the law. While employers should give deference to the regulations in administering their FMLA policy, the definitions contained in the regulations should not be quoted in any FMLA policy. Many of these definitions have been challenged successfully in the courts.

Direct FMLA Questions To Human Resources

The FMLA places substantial burdens on employers to inform and notify employees of their rights and obligations under the FMLA. An employer’s FMLA policy, however, cannot answer every question an employee may have concerning his or her rights or obligations. Informing employees specifically to whom they should address questions concerning the FMLA evidences the employer’s efforts to further inform employees.

Discipline For Misrepresentations Or Misuse Of FMLA Leave

Controlling attendance in the workplace can be a vexing problem for employers, especially given the entitlements provided employees under the FMLA. The FMLA, however, does not entitle employees to misrepresent or misuse their FMLA leave. The regulations in fact expressly exclude from the restoration and maintenance of health care benefits provisions any employee who fraudulently obtains FMLA leave from an employer.

Tennessee Maternity Leave Policy

Tennessee law requires employers to have a written Maternity Leave policy in their handbook – if they have a handbook and are covered under the Tennessee Maternity Leave Act (TN Code Sec. 4-21-408).

The Tennessee law covers employers with 100 or more full-time employees at one job-site. It provides up to four months of unpaid leave for pregnancy, childbirth, adoptions, and nursing. To be eligible, an employee must give three months notice unless they are unable to provide the notice. For example, if there is a medical emergency. The employee must have worked full-time for at least 12 consecutive months for the employer and intend to return to work after leave. Similar to the FMLA, they must be returned to the same or equivalent position following leave. Also similar to the FMLA, it applies to both men and women. Tennessee Maternity Leave and FMLA policies should both state that these two leaves run at the same time.

Internet and Email Usage Policy

Employers who intend to monitor emails or internet usage of employees need to have a policy which gives employees notice that the information will be monitored. Additionally, employers should clearly inform employees that they have no right to privacy in their emails or internet usage. The equipment and software is company property and should be used for business purposes.

Recently, email and internet usage policies have been a focus of NLRB scrutiny. The NLRB’s argument is that restrictive overly broad policies tend to chill the employees’ rights to unionize or engage in certain protected activities. An employer violates Section 8(a) (1) of the Act by maintaining work rules if the rule reasonably tends to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). To determine if a work rule has such an effect, the Board uses a two-part test. Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004). If a work rule explicitly restrictsSection 7 protected activities, it is clearly unlawful. Id. If the work rule does not explicitly restrict Section 7 activities, the rule only violates Section 8(a)(1) if:

1) Employees would reasonably construe the rule to prohibit Section 7 activity;
2) The employer promulgated the rule in response to union activity; or
3) The employer applied the rule to restrict the exercise of Section 7 rights.

If a rule is ambiguous and does not contain limiting language or context to clarify to employees the rule does not restrict Section 7 rights, the rule is also unlawful. See University Medical Center, 335 NLRB 1318, 1320-1322 (2001), enf. denied in pertinent part 335 F.3d 1079 (D.C. Cir. 2003). However, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct are not unlawful. See Tradesmen International, 338 NLRB 460, 460-462 (2002).

Vacation Time Payout at Termination Policy

Tennessee employers may choose whether or not they will pay accrued but unused vacation time when an employee quits or is terminated. The employer must make the payout clear in a written handbook policy. If there is no policy, the employee is entitled to any accrued but unused vacation time when the employee quits or is terminated.

DRAFTING SHOULD-HAVE POLICIES

Once you have the “must-have” policies, you can begin to think about policies you “should-have” in your handbook. These include:

Attendance: These policies can be either general or specific – depending on how the employer applies attendance rules.

Alcohol & Drug Policies: The Tennessee Drug Free Workplace Act allows employers to receive a workers’ compensation premium discount if they comply with the law. Part of the law is having a written policy which outlines types of testing, drugs prohibited and consequences of testing positive. A form policy may be found at the Tennessee Department of Labor’s website. Employees must be notified at least 60 days before drug and alcohol testing can begin. ( T.C.A. Section 50-9-105).

Break Time for Nursing Mothers: FLSA requires employers with 50 or more employees to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. §207(r). Voting: Tennessee law (T.C.A. §2-1-106) requires employers to allow employees paid time off work to vote unless the polls in their county open three or more hours before the employee’s shift begins or three or more hours after the shift ends. They are allowed a “reasonable” time to vote up to three hours. Employees must provide the employer notice they intend to vote by noon on the day before the election. Tennessee law (T.C.A. §2-19-134) prohibits employers from coercing employees to vote for a specific law or candidate. Jury Duty: Tennessee law (T.C.A. §22-4-106) requires employers to excuse employees for each day the employee’s service as a juror in any court exceeds three hours. If the employee works the night-shift, the employee is excused from work the shift immediately preceding the jury duty. After the first day of service that exceeds three hours, the employee on night-shift is excused from their next shift within 24 hours. Employees are entitled to their regular pay, minus the amount paid by the court, unless they have worked on a temporary basis for the employer for less than six months. Employers must only compensate for the actual time the employee spent serving or traveling to and from jury service. The employee must provide the employer with a copy of the summons.

Smoking: Tennessee employers may ban employees from smoking on company premises. Policies should establish when and where employees are allowed to smoke – if at all.

Investigative Searches: Tennessee private employers may search employees’ personal belongings which are on company property. Search policies need to give employees notice that they have no right to privacy in their desks, lockers, backpacks, purses, etc.

Benefit Policies: Benefit policies should contain a disclaimer advising employees that the ultimate decision as to whether someone or something is covered under a policy depends on the plan documents – not the handbook policy – and final decisions are made by the insurance company.

ADA Accommodations: Accommodation policies provide a way employees can request accommodations. This can be a way to by-pass the supervisor or manager who may not recognize an accommodation request. Make sure the reporting procedure is clear.

Workplace Violence: These policies need to prohibit not only acts of violence, but also verbal threats of violence. Tennessee employers may also prohibit employees from bringing guns on to company property or parking lots – even if they have a legal permit to carry a concealed weapon.

Prohibited Conduct: Policies should list specific conduct that will not be tolerated and the consequences of violations. Caution: do not be too specific and make sure you tell employee the list is not an exhaustive list. If you have a progressive disciplinary policy, be sure to state the company has a right to skip any step and immediately terminate an employee.

DRAFTING OPTIONAL POLICIES

Some optional handbook policies to consider include:

Cell Phone Use While Driving: If employers require employees to drive as part of their work, consider prohibiting employees from using the telephone for calls, emails or texts while driving – unless they can do so hands-free.

Social Media Policies: The NLRB is looking closely at these types of policies. They believe overly-broad policies which prohibit employees from making derogatory comments about the employer, chill the employees’ exercise of protected rights under Section 8(a) of the NLRA. This is a changing area of the law and social media policies should be regularly reviewed by legal counsel.

Tape Recording at Work: Employers may prohibit employees from tape recording conversations at work. Appearance Policies: Employers may require employees to dress a certain way or have a certain “look” while at work. They may also require women and men to dress differently based on gender. Caution: employers must reasonably accommodate sincerely held religious beliefs. For example: women only wearing dresses, Muslim head coverings, religious tattoos & piercings, men wearing beards for religious purposes, etc.

Appearance Policies: Employers may require employees to dress a certain way or have a certain “look” while at work. They may also require women and men to dress differently based on gender. Caution: employers must reasonably accommodate sincerely held religious beliefs. For example: women only wearing dresses, Muslim head coverings, religious tattoos & piercings, men wearing beards for religious purposes, etc.