Leaves are turning, days are shortening — the classic signs that winter is on its way. With winter comes cold and flu season. Much like flu shots often protect us from coming down with the flu, when done right employee handbooks can help protect employers legally.
Continuing on with Part II of this post, we list some more common symptoms that your California handbook is due for a checkup this flu season:
Symptom No. 6: No Limitation of Privacy Expectations For Company-Issued Devices And Technology Systems
If you’re like most California employers, you provide your employees with various electronic devices (laptops and cellphones) and technology systems (email and voicemail). And you likely monitor their use for legal compliance and other valid business reasons. Don’t make the mistake of failing to advise your employees of this fact. California is one of a handful of states that provides a constitutional right to privacy. Because California employees are presumed to have a reasonable expectation of privacy, it is especially important for California employers to provide advance notice of what employees can and cannot expect to remain private in the workplace.
Prescription: To combat invasion of privacy claims, clarify that electronic devices and technology systems remain company property, that employees have no expectation of privacy when using company-issued devices and technology, and that the company retains the right to access and inspect the devices and systems and all information stored on them.
Symptom No. 7: A “Use It Or Lose It” Vacation/PTO Policy
A “use it or lose it” vacation/PTO policy is a rookie mistake. In California, accrued vacation and paid time off are earned wages that cannot be forfeited. As we’ve blogged about before, California forbids “use it or lose it” vacation/PTO policies. Employers either must pay out accrued, unused vacation/PTO at the end of the year or allow employees to carry it over to the following year. Employers also must pay out all accrued, unused vacation/PTO upon employment separation.
Prescription: To control vacation/PTO banks and limit payouts, include a vacation/PTO accrual cap that permits employees to accrue vacation/PTO up to a maximum cap, with no additional accrual until the employee uses some vacation/PTO and falls below the cap. The maximum should be a reasonable amount, so that employees have sufficient opportunity to take time off. A maximum “cap” of 1.5 times the employee’s annual accrual generally should be sufficient.
Symptom No. 8: An Overly Detailed Discipline Procedure
Overly detailed discipline procedures and references to “progressive” discipline can limit an employer’s flexibility in addressing workplace misconduct issues. For example, you don’t want to commit to a specific set of disciplinary steps if you want the flexibility to skip steps or even ignore the process entirely for serious incidents of misconduct.
Prescription: Instead, consider generally outlining available disciplinary steps and indicate that the company retains the discretion to determine which type of discipline to use in each particular case, and that employment at all times remains at will.
Symptom No. 9: Failure To Update the Handbook
Whether you like it or not, your handbook is a living document that must remain current and correct to protect you. Out of date policies expose an employer to liability because they may not comply with new legal requirements. Similarly, inconsistent policies or policies that do not reflect actual practice can lead to confusion and liability.
Prescription: Although not every change in the law necessitates a new version of a handbook, review your handbook at least annually and, when appropriate, revise your policies to reflect new laws (including federal, state, and municipal laws) and/or modified practices. It is also a good idea to compare your handbook with relevant benefit-plan documents to make sure there is consistency.
Symptom No. 10: A Deficient Handbook Acknowledgment Process
Even a handbook that is done right can fail to provide protection if the employer cannot establish its employees have received and read the handbook. Most employers require acknowledgement, but many fail to carefully track their receipt. Additionally, some employers also require employees to sign immediately before they have had an opportunity to read the handbook.
Prescription: Develop a process to track acknowledgements that builds in time for the employee to actually review the handbook but still ensures that the employee signs and returns the acknowledgment.
These prescriptions should help inoculate California employers against a bad case of incorrect policies and unintended consequences, and keep the company healthy for the coming year.