February 23, 2016
As we move into the new year, it is a good time to review your employee handbook and make sure it is compliant with current law.
As we move into the new year, it is a good time to review your employee handbook and make sure it is compliant with current law. Remember that your employee handbook can provide you with a guide for how to handle problems in the work place and is often your first line of defense if an employee or former employee claims you violated the law or that he or she has otherwise been treated unfairly.
Some of the most common problems I see in handbooks are the following:
1) Missing the at-will disclaimer unique to South Carolina
South Carolina does not have many state labor laws, but we do have a law requiring an at-will disclaimer in order for your handbook not to be considered an employment contract. Without the specific disclaimer you are exposing the company to unintended promises. The required disclaimer language can look rather awkward, but the law requires it to be underlined, in all capital letters, on the first page of the handbook, and signed by the employee.
2) Unnecessary use of words like “shall” or “must” or “will”
Employers often limit the discretion they have to deal with employment-related situations by using definitive language like “shall”, “must” or “will.” This is not advised, especially when it comes to disciplinary procedures. Employers should leave themselves freedom to decide whether a particular offense warrants just a verbal warning or termination without being restricted by mandatory language or a progressive disciplinary scheme in the handbook. Using the mandatory language can have a particularly unintended result if you do not have the necessary South Carolina at-will disclaimer on your handbook.
3) Overly broad confidentiality and social media policies
Last year, the National Labor Relations Board (NLRB) issued guidance on employee handbooks that took a very expansive view of language that is prohibited by the National Labor Relations Act (NLRA). Even if you are not unionized, the NLRA still applies to your business and the NLRB can investigate and penalize you if you are unnecessarily restricting or prohibiting “protected concerted activity,” which includes an employee’s right to talk about your company’s working conditions and their wages. 29 U.S.C. § 157. The NLRB’s 2015 guidance admonished any general or broad restrictions concerning confidentiality or social media policies. Employers must engage in a careful balancing act in drafting these kinds of policies to make sure they are adequately protecting the reputation and confidential information of the business without inviting a complaint to the NLRB.
4) Limited discrimination and harassment policies
Employers often have a great harassment and discrimination policy but it is limited only to sexual harassment and sex discrimination. To comply with the law, your policy should embrace all forms of discrimination and harassment in the workplace.
5) Subjecting your business to employment laws that do not apply
Many employment laws do not apply until your company has a certain number of employees. For example, Title VII and the Americans with Disabilities Act only apply to business with 15 or more employees, and the Family Medical Leave Act applies only to business with 50 or more employees. Referencing laws in your handbook that otherwise would not apply to you can make your company subject to all the regulations and enforcement actions that come with the law, creating unnecessary headaches for your business.
Check out more information to make sure your handbooks comply with current law here.