Employment Law Update
January 24, 2017
For employers across the Carolinas, the New Year presents the ideal opportunity to review and update important company policies. In some instances, there may be policies that need to be eliminated altogether. This article highlights four important policies most employers should have – and one particular policy that employers should consider removing from company handbooks or manuals.
Virtually no handbook is complete without an effective and well-drafted Equal Employment Opportunity (EEO) policy. Most employers are subject to some, if not all, federal laws prohibiting employment discrimination and requiring equal employment opportunity. For example, employers with 15 or more full-time employees are subject to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Genetic Information Non-Discrimination Act. Having 20 or more employees requires compliance with the Age Discrimination in Employment Act, and having 50 employees brings the Family and Medical Leave Act (FMLA) into play. Moreover, depending on location, employers may be subject to other local rules and regulations regarding equal employment opportunities.
One of the protected characteristics covered by Title VII is “national origin.” In late 2016, the Equal Employment Opportunity Commission (EEOC) issued an updated enforcement guidance regarding this category. While the enforcement guidance is not controlling law and does not bind courts in their decision-making, it provides instruction on and insight into the EEOC’s enforcement efforts. Indeed, the new national origin guidance suggests “promising practices” that employers may adopt to promote equal opportunity and, potentially, avoid or limit liability.
Among these “promising practices” is the communication of a clear EEO policy notifying prospective applicants and current employees that applicants and internal promotions will be considered without regard to potential language barriers, as the EEOC defines national origin discrimination to include discrimination because an individual “has the linguistic characteristics” of a particular national origin group. The EEOC also recommends updating training for managers and supervisors so they are aware that “accent” discrimination, “fluency requirements,” and “English-only” rules may violate Title VII. A link to the EEOC’s “Q & A” page regarding this new guidance can be found here.
All handbooks should have an anti-harassment policy. Most employers recognize that the policy should include a statement broadly prohibiting all forms of harassment, including sexual harassment. However, many employers are less aware of the importance of an easy-to-understand reporting procedure. This procedure should clearly explain to all employees that any form of harassment should be reported immediately to their supervisor and/or to human resources. If the alleged harasser is the employee’s supervisor, the policy should encourage reporting to an alternative supervisor and/or to human resources. In addition, the policy should explain that all reports will be kept confidential (to the extent possible), and will be thoroughly investigated immediately.
Having an effective, alternate reporting procedure and an internal practice of actually investigating harassment complaints to their conclusion can provide an effective defense against a claim of harassment or hostile work environment made by a current or former employee.
Notably, this month the EEOC issued a new, proposed enforcement guidance regarding discriminatory harassment. Among other things, the proposed guidance addresses shifting legal standards applicable to harassment claims and it includes specific examples of conduct that, according to the EEOC, does and does not constitute unlawful discrimination.
The proposed guidance follows up on a report issued in June 2016 by the EEOC’s Select Task Force on the Study of Harassment in the Workplace. That task force report urges employers to conduct regular assessments of the workplace to preemptively root out evidence of harassment, ensure that comprehensive anti-harassment policies are in place and clearly communicated to employees, and that anti-harassment training is offered regularly. This enforcement guidance will likely be finalized later this year and a link to the proposed guidance can be found here.
As noted, employers with 15 or more employees are covered by the ADA. Consequently, these employers (and any employer likely to reach that threshold) are well-served by a separate statement regarding reasonable accommodations and a commitment to engaging in the interactive process.
The duty to provide a reasonable accommodation to a disabled individual is a fundamental statutory requirement under the ADA. Although many employers rely on their EEO policy to cover ADA accommodation issues, consider preparing a separate policy statement dealing specifically with ADA accommodations. In doing so, any ADA policy should make clear that employees are encouraged to notify the company of a need for an accommodation and that the company is committed to providing one, so long as the accommodation will not cause the company an undue hardship. This section should also include a statement that the company will engage in the interactive process to ensure that both the employee and the company work to arrive at a solution.
In spring 2016, the EEOC issued a “resource document” affirming the Commission’s belief that a leave of absence to treat or recuperate from a medical condition or disability can constitute a reasonable accommodation under the ADA. Accordingly, consider including in any new or revised ADA policy a provision that a request for leave because of a medical condition or disability will be treated as a reasonable accommodation request and will be considered during the interactive process. Importantly, because a leave of absence can constitute a reasonable accommodation, employers subject to the FMLA should not have a blanket policy of termination following expiration of FMLA leave.
For a more in-depth discussion, a link to the EEOC’s “resource document” can be found here.
In both North and South Carolina, the default employment status is “at-will.” Generally speaking, this means that an employee without a contract of employment can be terminated for any reason or no reason, so long as it is not illegal or discriminatory. Although this is the “default rule,” companies frequently choose to reaffirm it, either in a company handbook or in a separate policy statement issued to employees when they are hired. In either instance, it is helpful to provide employees with clear notice that the company considers the employment relationship to be “at-will” and terminable by either the employee or the employer, at any time, for any reason.
Importantly, South Carolina law provides that a handbook, personnel manual, policy, procedure, or other document issued to an employee does not create a contract for employment if it is “conspicuously disclaimed.” A “conspicuous disclaimer” is one that is underlined and in capital letters on the first page of the document. If the document is a handbook or personnel manual, the first page must also be signed by the employee. Assuming these requirements are met, the South Carolina law is designed to afford employers protection from contract claims based upon language in the handbook or other document. Although North Carolina does not have a comparable statute, having a similar “conspicuous disclaimer” will be helpful in the event an employee alleges she has a contract for employment based upon a handbook or manual.
Wages, Hours and Other Terms and Conditions of Employment
In recent years, the National Labor Relations Board (NLRB), which enforces the National Labor Relations Act (NLRA), has taken a hard line on one particular statement or policy frequently found in company handbooks or policies.
Specifically, to ensure employee harmony, cohesion, and team unity, many companies – some many years ago – put in writing the old axiom that “you shouldn’t discuss your salary with others.” For example, some company handbooks include language flatly prohibiting employees from “telling other employees their yearly salary.” Others have included similar language in a “personal conduct” policy, in which employees are “advised” not to discuss salary, wages, or pay in order to avoid fostering jealousy or disunion in the ranks.
However, Section 7 of the NLRA guarantees all employees the right to join together to try to improve their pay and working conditions. Section 8(a) of the NLRA prohibits companies from interfering with these rights. The NLRB reads these two sections together to mean that companies cannot prohibit or even suggest that employees not discuss their wages, hours or working conditions. Indeed, the NLRB has significantly increased the number of “unfair labor practice” charges it files against companies with policies that purport to ban this type of activity.
Consequently, the New Year also provides a good opportunity to review company policies and expunge or eliminate any language that could be read to prohibit or suggest that employees not discuss among themselves their wages, hours, working conditions, or terms of employment.
The Employment Law Update is published as a service to our clients and friends. It is intended to be informational and does not constitute legal advice regarding any specific situation.