Reminder to Review Handbooks as New Laws Become Effective
With two new Massachusetts employment laws going into effect this year, now is a good time for MA employers to look at their Employee Handbooks to see if any revisions may be necessary.
As employers are aware the new MA Pregnant Workers Fairness Act (PWFA), in effect as of April 1, 2018, requires employers to engage in an interactive process with pregnant employees similar to the interactive process under the ADA. Under the PWFA, the interactive process is aimed to determine a reasonable accommodation for the pregnancy or pregnancy-related condition. This is a change in prior law and will likely require an update to handbooks.
As employers prepare for the amendments to the Massachusetts Equal Pay Act (MEPA) that come online on July 1, 2018, they will also want to review their handbooks to ensure compliance with those new provisions. The basic premise of MEPA is equal pay for comparable work. With that in mind, employers will want to conduct a review of their handbook policies to ensure there is no language that potentially exposes the company to liability.
In addition to both the PWFA and MEPA, employers should also be aware of the provisions of how the National Labor Relations Board (NLRB) interprets handbook provisions in evaluating whether a revision is necessary.
In recent years, the NLRB has paid a great deal of attention to social media policies in employer handbooks. As social media becomes a larger and larger part of our everyday lives, more companies have tried to address the potential damage created by employee social media posts that reflect negatively on the company. However, the NLRB views social media as the modern version of the “water cooler,” where employees come together to interact and exercise their Section 7 rights. The NLRB will find a social media policy unlawful if it is not limited to lawfully ensuring that employees don’t misrepresent the employer’s official position or authorization to speak on behalf of the employer. The NLRB will further find a policy unlawful if it prevents employees from speaking about the employer’s business, policies, employees, and working conditions. The NLRB will consider policies unlawful if they prohibited use of company trademarks or prohibited or required permission to post photographs or videos taken on company property. These policies are considered too broad because they would interfere with Section 7 rights, such as using or referencing the employer’s copyrighted handbook to address an objectionable policy or practice in concerted activity and documenting employment conditions, including health and safety concerns.
The NLRB may also consider broad non-disparagement policies to be unlawful. Employees have a Section 7 right to discuss their employment terms and conditions, and non-disparagement policies may unlawfully prohibit employees from protesting or criticizing the employer’s treatment of employees. The NLRB will also apply the same analysis to rules broadly prohibiting disrespectful, negative, inappropriate, or rude conduct towards the employer or management. Employers have a legitimate business interest in requiring employees to act professionally and respectfully to clients, business parties, and other third parties, as well as prohibiting insubordinate conduct. However, broadly written rules unlawfully interfere with an employee’s right to criticize or protest an employer’s policies or treatment of employees. Therefore, without clarification, broadly written rules will be ruled unlawful. For similar reasons, the NLRB will also find overly broad confidentiality policies to be unlawful. The NLRB will also take issue with poorly drafted conflict-of-interest policies. If a conflict-of-interest policy prohibits personal activities that conflict with the employer’s interest, the NLRB will often construe the policy as unlawfully chilling Section 7 activity, because union organizing and protesting employer’s treatment of employees could be interpreted as activities that conflict with the employer’s interests.
Because the law is continually changing in numerous ways, it is advisable that employers set aside a time, at least once per year, to review and update their handbook. Additionally, because changes of law often involve a great deal of nuance, employers should assess whether they have the ability to effectively review their own policies, or whether they want to engage a labor and employment law expert to undertake the review.
If you have any questions about any labor and employment law matters, please contact the attorneys at Royal, P.C.