6 Employee Handbook Updates in 2019

There have been significant changes at the local, state and federal level on labor and employment laws and regulations that impact our organizations.  Some of these changes can and will impact our current policies, procedures and handbooks.  We need to be aware of these legal changes, make the necessary updates and communicate/train on these changes.  Training and sign-offs are crucial during this process.

Below are six employee handbook language updates for 2019:

  1. Sexual Harassment & Retaliation Policy: These language changes should have occurred in October of 2018 (new changes in NYC). New York State is requiring all employers to have a clear policy on sexual harassment, retaliation, investigations, etc. in place.  We also need to communicate this policy throughout the workforce.  Ensure you have this policy in place.  Employers outside of New York, should also review their policies and update accordingly.
  2. Reasonable Accommodation: “In 2018, new or amended reasonable-accommodation compliance requirements took effect in seven states and two key municipalities. They address issues such as:
  • Expanding reasonable accommodations for women who are pregnant or breast-feeding.
  • Allowing people who have certain conditions public access to employee restrooms.
  • Providing safety accommodations to people who have been sexually assaulted or experienced domestic violence or stalking.”[i]

This includes 2019 legislation changes in New York City.

  1. Equal Pay and Wage Discrimination: Four states and two municipalities adopted or modified pay-equity laws. These laws address; wage discrimination based on gender, salary history questions to job applicants and employers banning wage discussions among co-workers (which is a violation of the National Labor Relations Act-Protected Concerted Activity).  In New York State we will continue to see evolution of wage discrimination and salary history laws.  Watch for statewide legislation in 2019 or 2020.  The handbook language change is important, but supervisory level training is just as important with these changes, especially for anyone interviewing applicants.
  2. Smoke-Free Workplace: “More states are including e-cigarettes and other tobacco substitutesin their laws prohibiting smoking in the workplace. Employers may be required to post notices, provide designated smoking areas and make other adjustments under such laws.”[ii]This is a great opportunity to review our own policies on smoke-free workplaces to include e-cigarettes, tobacco substitutes and other tobacco products.
  3. Weapons in the Workplace: “In 2018, three states adopted or amended laws related to weapons in the workplace, addressing such issues as:
  • Keeping guns in vehicles in company parking lots.
  • Restricting the carrying of a concealed handgun to those authorized to carry a handgun.”[iii]

The law is clear in New York State regarding weapons in the workplace.  Ensure you have a policy in place and review other local and state laws if you operate in area’s outside of New York State.  Communicate the policy and hold folks accountable, especially during hunting season in this area.

  1. Non-Discrimination Language: With the recent passing of the Gender Expression Non-Discrimination Act (“GENDA”) by the New York State Legislature and the expected signature of the bill by Governor Cuomo, we need to review current discrimination language to ensure it covers all protected categories.

These are just a few examples of employee handbook and policy language changes and updates; any organizations should consider in 2019.  Watch for changes to medicinal and recreational marijuana laws, reasonable accommodation with marijuana use, marijuana as a disability at the local and state level.  Another area to monitor is, paid FMLA leave at the federal level.

Annual reviews of handbook and policy language is necessary to ensure legal compliance with many of the laws and regulations that are changing at the local, state and federal levels.  Updating the language is necessary, communicating, training and receiving signatures from the workforce should be a priority as part of the annual review.  It’s one thing to update language and put the handbook back on the shelf, its another to update, communicate and train the workforce.  If you are unclear on what and how to update, seek guidance, these changes are complex, and we will continue to see evolution of laws and regulations.  Yes, I repeat these lines in every article.

New York Gender Expression Non-Discrimination Act (GENDA) Effective 2/24/2019

“Effective February 24, 2019, New York state’s Gender Expression Non-Discrimination Act (GENDA) will make it unlawful for employers to discriminate against workers based on their actual or perceived gender identity or expression or transgender status. New York law already bans employment discrimination based on sexual orientation.”[iv]

IRS 2018 Taxes on Parking Benefits

“The IRS has clarified how all employers can calculate the tax on qualified parking benefits that took effect this year. The guidance also provides some relief for nonprofit, tax-exempt organizations, which now must pay a 21 percent unrelated business income tax (UBIT) on subsidized parking they provide to employees.”[v]

IRS issues guidance for determining nondeductible amount of parking fringe expenses and unrelated business taxable income; provides penalty relief to tax-exempt organizations

IRS Notice 2018-99

– Matthew Burr, HR Consultant

IRS Notice 2018-100

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/7-policies-to-update-in-your-2019-employee-handbook.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/7-policies-to-update-in-your-2019-employee-handbook.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/7-policies-to-update-in-your-2019-employee-handbook.aspx

[iv] SHRM Email

[v] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/irs-offers-parking-benefit-tax-relief.aspx

7 Thoughts on Workplace Bullying Policies

We have seen significant changes in the workplace related to sexual harassment training, policies and employee expectations.  “In two studies noted by The Daily Campus, one in three women (in a survey of more than 2,000 women between the ages of 18-34) “reported experiencing sexual harassment, and 71 percent of those women declined to report it.” According to a PwC survey of more than 25,000 women, 52 percent reported incidences of workplace bullying and harassment.”[i]  Workplace bullying is a common problem throughout organizations and can have long-term detrimental impacts on our workforce including; decreased employee morale, turnover, decreased trust in leadership, employee stress, depression, health issues, absenteeism, workplace violence, retaliation and legal concerns.  As leaders we need to establish a culture of zero-tolerance for workplace bullying, including policies and procedures that employees understand.

Below are seven thoughts on workplace bullying policies:

  1. Zero-Tolerance Workplace Harassment, Bullying & Retaliation Policy: This is a draft objective statement in a policy that addresses this issue. “The purpose of this policy is to communicate to all employees, including supervisors, managers and executives, that Organization X will not in any instance tolerate bullying behavior. Employees found in violation of this policy will be disciplined, up to and including dismissal.”[ii]  Short and to the point policy objective.
  2. Defining Workplace Bullying: “Organization X defines bullying as repeated, health-harming mistreatment of one or more people by one or more perpetrators. It is abusive conduct that includes:
    1. Threatening, humiliating or intimidating behaviors.
    2. Work interference/sabotage that prevents work from getting done.
    3. Verbal abuse.”[iii]
  3. Workplace Bullying Examples: “Organization X considers the following types of behavior examples of bullying:
    1. Verbal bullying. Slandering, ridiculing or maligning a person or his or her family; persistent name-calling that is hurtful, insulting or humiliating; using a person as the butt of jokes; abusive and offensive remarks.
    2. Physical bullying. Pushing, shoving, kicking, poking, tripping, assault or threat of physical assault, damage to a person’s work area or property.
    3. Gesture bullying. Nonverbal gestures that can convey threatening messages.
    4. Exclusion. Socially or physically excluding or disregarding a person in work-related activities.”[iv]

We could write or maybe could not draft a never-ending list of workplaces bullying situations in our policy.  It is recommended to include examples in the policy and training sessions.  When I train supervisors and managers my advice is this; workplace bullying can take the shape of many forms, and it does.  Current or past examples and scenarios are great opportunities to train employees and leaders.  Ask for their input on this, they have great questions and scenarios.  Years of experience means years of situations.  There are hundreds of examples online to use as potential options and easy to create during the discussion.  I use these with undergrads all the time.

  1. Employee Training and Awareness Programs: The focus of this training should include an understanding of why these policies are needed and how employees can report issues or concerns.  These trainings should be conducted on a regular basis and should include; acceptable and unacceptable workplace behavior, recognizing bullying and other forms of harassment, reporting this behavior, retaliation and an overview of the policy.
  2. Manager and Supervisor Training: If you recall my article published on January 14, 2019, we covered this topic. Manager’s and supervisors need to understand their role in preventing, enforcing policies and addressing these common workplaces issues.  This training should be tailored for that group of leaders, with role play and enforced expectations.
  3. Building a Culture: Yes, it is our responsibility to build a culture where managers, supervisors and employees at any level always behave professionally. This includes but not limited to, at work, off-site, off-hour gatherings, social media, etc.  If owners, leaders, managers and supervisors at the top of the organization get away with bullying, employees assume this is an acceptable form of behavior.  Over communicate the organizations commitment to ensuring an environment free of workplace bullying and harassment.  Embrace the culture you want in your organization and hold people accountable from top to bottom.
  4. Reporting a Complaint: Clearly define that process for filing a complaint in the policy or employee handbook. In New York State we now have a complaint procedure form and process for sexual harassment, we can add bullying and workplace harassment into the same procedure.  Employee’s should have the opportunity to communicate this information through multiple channels in the organization or outside the organization (HR Consultant, compliance line, etc.).  Ensure everyone understands that complaints are taken serious and investigations will take place, as needed.  Training and policy signoffs are recommended.  Make the policy or complaint form visible, hang it near the labor and employment posting requirements, put it on the intranet, cover it in crew meetings.

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This is a high-level overview of a workplace bullying and harassment policies and organizational expectations.  Organizations should tailor any policy or procedure to the needs of the operation, while ensuring the policy is legal.  Train the workforce on expectations and hold everyone accountable.  This is a training I have conducted for years and it continues to be a success in multiple industries.  Develop a culture in which there is no workplace bullying.  Follow-up on any complaints or issues, efficiently, while communicating with parties involved.  It is as simple as holding people at every level accountable.  If you are unclear on how to write a policy, train the workforce or implement a complaint procedure, seek guidance, this is an area I am happy to help with and drive forward.  Culture starts with leadership, embrace the culture you envision for your organizations.

NYC Sexual Harassment Training Requirements April 1, 2019

“Perhaps most notably, the act requires New York City employers with 15 or more employees to provide annual interactive training to prevent sexual harassment for all employees, including interns and supervisory and managerial employees.
Effective date of notice posting and fact sheet distribution: 9/6/2018*
Effective date of annual interactive training requirement: 4/1/19*
Text of the measure can be found here.”[i]

NYC Bans Family Planning Discrimination May 20, 2019

“The New York City (NYC) Council has added “sexual and other reproductive health decisions” to the list of protected classes under the NYC Human Rights Law. This new protected category encompasses “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.”
Covered employers: All employers in NYC with four or more employees.
Effective date: 5/20/19
Text of the measure can be found here.”[ii]

Yes, these two pieces of legislation only impact employers in New York City.  However, as we have seen in the past, the changes start in NYC and slowly work their way throughout the state.  Be aware of these changes in NYC and how they might impact us in Upstate New York.  If there are comment periods on new legislation, comment during that time period.

– Matthew Burr, HR Consultant

[i] SHRM Email

[ii] SHRM Email

[i] https://www.paychex.com/articles/human-resources/workplace-harassment-prevention

[ii] SHRM Draft Policy

[iii] SHRM Draft Policy

[iv] SHRM Draft Policy

6 Definitions for Drug and Alcohol Testing Policies

As we see evolution of local and state laws on medicinal and recreational marijuana (and potentially mushrooms in Colorado), we need to ensure our drug and alcohol testing policies are up-to-date and legal.  A nationwide policy on drug and alcohol testing will not suffice, as states continue to change legislation.  We also need to ensure the Americans with Disability Act language is included in the policy and we enforce consistently.

Below are six definitions to consider in the drug and alcohol testing policy:

  1. Employee Assistance Program: If your organization offers employee assistance, we should carve out language regarding the assistance that is provided to the workforce, with location, contact person and phone number. The EAP information should be communicated regularly and through multiple channels of communication.
  2. Preemployment Testing: This is common language to include in a drug testing policy or offer letter. “Applicants being considered for hire must pass a drug test before beginning work or receiving an offer of employment. Refusal to submit to testing will result in disqualification of further employment consideration.”[i]
  3. Reasonable Suspicion Testing: Often included in policies throughout many of our workplaces. “Employees are subject to testing based on (but not limited to) observations by at least two members of management of apparent workplace use, possession or impairment. HR, the plant manager or the director of operations should be consulted before sending an employee for testing. Management must use the Reasonable Suspicion Observation Checklist to document specific observations and behaviors that create a reasonable suspicion that an employee is under the influence of illegal drugs or alcohol. Examples include:
  • Odors (smell of alcohol, body odor or urine).
  • Movements (unsteady, fidgety, dizzy).
  • Eyes (dilated, constricted or watery eyes, or involuntary eye movements).
  • Face (flushed, sweating, confused or blank look).
  • Speech (slurred, slow, distracted mid-thought, inability to verbalize thoughts).
  • Emotions (argumentative, agitated, irritable, drowsy).
  • Actions (yawning, twitching).
  • Inactions (sleeping, unconscious, no reaction to questions).”[ii]

This is not be an all-inclusive list and should be tailored to the needs of your organization.

  1. Post-Accident Testing: If your employees are operating equipment or driving workplace vehicles, this is language that should be included in your organizations policy. In some organizations post-accident testing is common after any accident in the workplace, it does not have to be an industrial organization.  Determine with your insurance agency and workers compensation company which post-accident testing should be in the policy.
  2. Random Drug Testing: In the past we have used external organizations to draw a percentage of names monthly for drug, alcohol and drug and alcohol testing. You can also program Excel spreadsheets to randomly choose people for random testing, based on employee numbers.  This should be done consistently monthly, semimonthly, semiannually or annually.  The policy should be communicated to employees.
  3. Return to Work Testing: Remember the ADA in this situation and state regulations prior to implementing return to work testing. I have used this process in past organizations when someone has admitted to testing positive prior to a random drug test.  We utilized a 12-month random drug testing last chance agreement.

Every organization will have differing requirements for drug and alcohol testing.  If your organization is DOT regulated, ensure you are following state and federal DOT requirements. The rules are complex and have changed recently.  Ensure your organization defines what happens if an employee does test positive for drugs, alcohol or both.  Consider adding language in regarding selling or purchasing drugs on company property.  Review the policy annually, communicate any changes to the workforce, publish the policy and obtain signatures from all employees.  If an employee is on a last chance agreement, review the policy again and obtain a signature.  In some circumstances preemployment drug and alcohol testing can lower workers compensation rates, I have seen this with manufacturing companies.  Confirm with your comp provider to see if this is an option.

DOL Adjusted Penalties for FLSA, FMLA and OSH Act Violations

FLSA:

  • The maximum penalty for repeated and willful violations of the FLSA’s minimum wage and overtime provisions increases from $1,964 to $2,014.

 FMLA:

  • The maximum penalty increases from $169 to $173.

OSH Act:

  • The maximum penalty for serious, other-than-serious, and posting violations increases from $12,934 to $13,260for each violation.
  • The maximum penalty for failure to abate violations increases from $12,934 to $13,260per day.
  • The minimum and maximum penalties for willful violations increase from $9,239 to $9,472 and from $129,336 to $132,598, respectively.
  • The maximum penalty for repeated violations also increases from $129,336to $132,598.”[iii]

Recent EEOC Settlements:

“Memphis gas station operator, Flash Market, to pay $100k to settle an EEOC lawsuit. The company permitted a sexually hostile work environment, then fired a female cashier when she complained, EEOC charged. http://ow.ly/pO1r30nAuu9 

Buffalo Wild Wings (R Wings R Wild) to pay $30k to three male job applicants to settle an EEOC sex discrimination lawsuit. The applicants were denied bartender positions in Arkansas and Oklahoma-area restaurants due to their gender, the lawsuit charged. http://ow.ly/Wbug30nAuI2 

Atlantic Capes Fisheries & BJ’s Service Co. to pay $675k to settle EEOC charges of egregious and pervasive sex harassment in the workplace. The lawsuit also alleges that the company retaliated by firing two employees who reported the harassment to EEOC.”[iv] http://ow.ly/rotu30nAvvI 

– Matthew Burr, HR Consultant

[i] SHRM Draft Policy

[ii] SHRM Draft Policy

[iii] https://www.shrm.org/ResourcesAndTools/hr-topics/compensation/Pages/DOL-adjusts-penalties-FLSA-FMLA-OSHAct-violations.aspx

[iv] EEOC Twitter Feed, February 5, 2019

8 Thoughts on Job Offer Letters

A job offer letter should be an exciting opportunity for your organization and the applicant receiving the offer letter.  I have seen personalized offer letters for jobs and the standard letters used by many organizations.  Regardless of the process or letter your organization utilizes, ensure your offer letter is legal, professional and easy to understand.

Below are my 8 thoughts on job offer letters:

  1. Professional Heading: Ensure your organizations logo is at the top of the page, along with the date and the individuals contact information. The letter should start with an introductory sentence, pleased to offer you a position.
  1. Summary of Employment Offer: The summary of employment offer should include; position title, hire/start date, reporting manager, hourly or salary rate, overtime if eligible, salary grade, vacation policy or number of weeks (is it prorated?), health insurance eligibility, retirement savings plan, etc.

New York State Specific Information on Include:

a. “Rate or rates of pay, including overtime rate of pay (if it applies)

b. How the employee is paid: by the hour, shift, day, week, commission, etc.

c. Regular payday

d. Official name of the employer and any other names used for business (DBA)

e.Address and phone number of the employer’s main office or principal location

f. Allowances taken as part of the minimum wage (tips, meal and lodging  deductions)”[i]

g. Under the New York Wage Theft Protection Act, employers are also required to maintain 6 years of acknowledgements confirming receipt of notification of wages and other information required to be provided by employers under the law.

h. Bonus Information: Organizations may provide their own notice, as long as it includes all of the required information. (Offer letter or wage change letter) Must include signatures.”[ii]

3. Restrictions, Restrictive Covenants or Non-compete: Another area to consider, especially if there is intellectual property and other proprietary information. These are not always legal in New York State and/or other states or localities, more information on these in future articles.  Know your state and local laws prior to drafting this language

4. References & Background Checks: If you do conduct reference and background checks, ensure to include language about the offer being contingent upon a successful reference or background check.

5. Preemployment Testing: Similar language here, regarding any preemployment drug testing or additional testing required prior to moving forward in the offer letter process. Remember the offer is contingent upon…

6. Form I-9 or E-Verify: Proof of your identity and employment authorization, as required by the U.S. Department of Justice and the Immigration and Naturalization Act.

7. “At Will” and Additional Language: “Your employment with us will be on an “at will” basis, which means that either you or the organization may terminate your employment at any time for any reason, with or without cause. No employee of the organization has authority to alter your at will employment relationship. Although the Organization does not have any current plans to change its benefits or compensation or programs, it reserves the right to change or terminate these benefits, programs and plans at any time.”

8. Closing the Offer: Close the offer with language that is exciting and promoting the unique opportunity to join the organization. Remember, this is a first impression.  Ensure there is contact information listed on the offer letter for the HR rep or manager of the department.  Include an area on the offer letter for the candidate to accept and sign.  Include any policy information, benefit or retirement information so the candidate has all necessary information to make an informed and efficient decision.  Include a response date if you feel it is appropriate, I do not see the value with exploding or expiring offers.  However, we do need an answer yes or no so we can move the organization forward.  My recommendation is to send a signed PDF copy to the applicant and the original in a Fed-Ex, UPS or USPS overnight envelope.

Every organization will have a different template or process for offer letters.  Some require an approval process prior to making or drafting an offer letter and required salary, vacation and other perks.  Other organizations have very legal and rigid offer letters.  No matter what format your organization utilizes for offer letters, remember one thing, treat the candidate/applicant how you want to be treated during the recruitment process.  The way we treat candidates can and will have an impact on if the offer is accepted or rejected and reputation follows any organization.

Another area to remember in New York State, with any wage increase (or decrease), promotion, status change, the state requires us to provide the wage notification form.  Organizations can use the state forms or draft the letter template with required information, my preference is a letter that spells out the state requirements, which also contains “at will” employment language.

Suffolk County Bans Pay History Questions

“Suffolk County, New York has passed a law making it unlawful for employers and employment agencies with four or more employees to inquire about a job applicant’s salary history or otherwise to rely on such information in setting a new employee’s compensation.  Entitled A Local Law to Restrict Information Regarding Salary and Earnings (“RISE Act”), this new law is designed to “help break the cycle of wage discrimination and close the wage gap” for statistically underpaid individuals, such as women and racial and ethnic minorities.  This is similar to measures that have already been enacted in New York City, Westchester County, and Albany County.  It will go into effect on June 30, 2019.”[iii]  Monitor for New York State legislation on pay history questions in 2019.

– Matthew Burr, HR Consultant

[i] https://labor.ny.gov/workerprotection/laborstandards/employer/wage-theft-prevention-act.shtm

[ii] “7 Notice of Pay Rate Requirements in New York State,” Burr Consulting, LLC Article, July 2, 2018

[iii] SHRM.org