Model Policies: An Employer ’ s First Line of Defense

1. Model Policies: An Employer’s First Line of Defense M. Kim Vance kvance@bakerdonelson.com (615) 726-5674

2. Purpose of an Employee Handbook and General Considerations • Communicate re: benefits, policies, rules, and expectations. • Establish Company culture. • Comply with employment laws. • Take advantage of available defenses to employment claims and litigation.

3. REVIEWING AN EMPLOYEE HANDBOOK • Are the policies current and up to date? • Have any of the policies interfered with company operations? • Have any of the policies affected employees’ productivity or morale? • Have any of the policies generated lawsuits or charges of discrimination?

4. REVIEWING AN EMPLOYEE HANDBOOK • Have the policies been uniformly and consistently applied? • Have any policies caused complaints by one or more employees? • Does your company conduct business the same way it did when the policy was created?

5. REVIEWING AN EMPLOYEE HANDBOOK • Are there policies that need to be added to the handbook? • Are there any policies that are not necessary? • Do the policies comply with the current laws (statutes, regulations and case law)?

6. Language to Avoid • Language conveying permanency – words like “permanent” to describe employment should not used. • Mandatory wording such as “shall” or “will.”

7. Language to Avoid • Statements that an employee can be discharged only for cause. • Statements regarding the duration of employment such as “we expect you to be with us for a long time” or “all of our employees have been with us for at least eight years.”

8. Language to Avoid • Statements in the handbook that are inconsistent with other policies of the company. • Language that suggests any policy or benefit is guaranteed.

9. INTRODUCTION • “Feel good” portion of the handbook. • Overview of the company. • Culture, mission, values. • Company history

10. USE OF DISCLAIMER • Include a disclaimer of any contractual intent. • Disclaimer should include language confirming at-will employment. • Disclaimer should be conspicuous in appearance (bold, all-caps) and in a conspicuous location. • Disclaimer should make clear that policies in handbook are subject to change.

12. EQUAL EMPLOYMENT OPPORTUNITY POLICY All employee handbooks should have a statement of the company’s Equal Employment Opportunity Policy.

13. Disability Policy • Explain how an employee requests a reasonable accommodation. • Identify the Company’s intent to engage in an interactive process to determine accommodations. • Include undue hardship limitation. • Include a prohibition against retaliation.

14. EEO POLICY • Define unacceptable conduct, i.e., discrimination based on any of the protected classes (race, age, sex etc.) • Provide examples of prohibited conduct • Designate the persons to whom complaints should be made and provide multiple reporting avenues, including one outside of the employee’s chain of command.

15. EEO POLICY • Include a strong, non-retaliation provision. • State that investigations of concerns will be investigated. • State that investigations will be kept as confidential as possible • State that discipline will be imposed if the policy is violated. • Set reporting expectations. • Set expectations for cooperating in investigations

16. HARASSMENT POLICY • Define unacceptable conduct, i.e., harassment based on any of the protected classes (race, age, sex etc.) • Provide examples of prohibited conduct • Designate the persons to whom complaints should be made and provide multiple reporting avenues, including one outside of the employee’s chain of command.

17. HARASSMENT POLICY • Include a strong, non-retaliation provision. • State that investigations of concerns will be investigated. • State that investigations will be kept as confidential as possible • State that discipline will be imposed if the policy is violated. • Set reporting expectations. • Set expectations for cooperating in investigations

21. FAMILY AND MEDICAL LEAVE ACT (“FMLA”) FMLA regulations require employers to set forth their FMLA policy in the employee handbook. Contents of FMLA poster are required to be included in the handbook policy OR the poster itself must be included in the handbook.

22. FMLA • Coordinate with other leave policies • Explain consequences of failure to comply with procedures • State how the 12 month period will be calculated (explain military caregiver leave 12 month period calculations) • State your rules for substitution of paid leave • Explain interplay between workers’ comp and STD with FMLA

23. FMLA • Prohibition against working elsewhere (including self-employment during a leave) • Prohibition against misrepresentations or using leave for purpose other than requested • Other leaves – if not eligible for FMLA, then what? • TMLA (Tennessee Maternity Leave Act) – revised May 27, 2005.

24. OTHER IMPORTANT PROVISIONS • Electronic Communications Policy • Social Media Policy • Nondisclosure of Confidential Information Policy • Solicitation/Distribution Policies • Drug/Alcohol Policy • Workplace Violence • Workplace Safety and Reporting of Workplace Injuries

25. Other Important Provisions • Wage and Hour • Open Door Policy • Employee Search Policy • Cell Phone Policy • Benefits Summary/Explanation • Dress Code

26. Acknowledgement

28. What Questions Do You Have?