This is the final in a three-part series authored by WLJ Labor & Employment attorney Daveante Jones. See the first installment and second installment in the series here.
Technology allows companies to work more efficiently and effectively. The potential for workplace landmines can be problematic though. Therefore, employers should be sure to include policies that cover these concerns. That can include having a policy discussing what is the acceptable use of the company’s technology—from the computers and fax machines, to the use of the Internet and email. Another topic to cover is computer security. Employees should know use of the company’s technology systems and electronic communications should be job-related and not for personal convenience. Generally, email and internet activity may be monitored for valid business purposes so be sure to note that employees should expect no right to privacy when using company technology and the company reserves the right to examine, monitor and regulate e-mail and other electronic communications, directories, files and all other content, including Internet use, transmitted by or stored in its technology systems, whether onsite or offsite. That also means prohibiting download of software or other program files or online services from the Internet without prior approval from the IT department.
Another important aspect the policy should cover is that all workplace anti-harassment rules apply to Internet activity. That means prohibiting employees from accessing inappropriate websites and using disparaging, abusive, profane or offensive language directed at or involving colleagues.
The policy should also address the need for employees to promptly return company-issued devices once they are furloughed, laid off or terminated. And, as always, include the possibility of disciplinary action in the event an employee violates the policy.
It is usually a guarantee that employees will obtain access to sensitive, confidential, restricted and proprietary information about the company or the company’s clients, customers, and employees, not generally known or made available to the public. A confidentiality policy that places an obligation on the employees not to disclose the confidential and proprietary information and trade secrets that they will obtain access to is essential. It starts with defining the type of information covered by the policy. While there are limited situations where confidential information can be disclosed, the policy should instruct employees that they should not use, disclose, divulge, or publish to others any confidential information acquired in the course of their employment without prior written consent of the company. Identifying those limited situations where prior written consent may not be required is helpful as well. For instance, the Defend Trade Secrets Act of 2016 provides certain protections to employees who are disclosing company trade secrets to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law.
Another helpful practice when it comes to protecting trade secrets and other proprietary company information is the concept of restricting access rights to only those who absolutely need it. In addition, another topic to include in the policy is how employees should save and store sensitive corporate data over secure network access and only on work-issued devices.
Finally, remember that federal or state privacy laws like HIPAA or Graham-Leach-Bliley, which govern the use and disclosure of personally identifiable information, may impact the policy as well.
Many companies conduct background checks of applicants during the hiring process or of employees in certain situations during employment. This may call for having a written policy explaining the process.
Obtaining information about a candidate’s work history, education, criminal record, financial history, medical history or use of social media is generally allowed. In developing the process and crafting the policy, employers need to be aware of the Fair Credit Reporting Act (FCRA). When conducting background checks through companies that are in the business of compiling information, employers have to comply with the FCRA. Employers should also be aware of certain restrictions related to obtaining medical and genetic information. Employers also must comply with federal and state laws that prohibit discrimination, and ensure that the background check is properly conducted or the information obtained is not used in a manner that denies equal employment opportunity to anyone on a protected basis, by intent or by unlawful disparate impact.
With the number of incidents of mass violence around the country, workplace violence policies are more relevant than ever. The goal with a workplace violence policy is to create a work environment of respect and safety that is free from intimidation, threats, and acts of violence. Therefore, the policy should set out examples of what types of behavior are prohibited and the potential consequences for violating that policy. Unacceptable behavior could include the use or carrying of weapons of any kind on company property, except as permitted by state law. Physical violence and destruction of property are natural examples as well but the policy should explain that threatening language or gestures and offensive jokes can be considered violation of the policy as well.
Be sure that employees know who to contact in the event they have been subjected to workplace violence or have observed or have knowledge of actual or potential workplace violence. Employees should also know to contact the local Police Department/Sheriff’s Office or dial 911 if an imminent danger or threat exists.
Progressive Discipline/Performance Improvement
While a perfect world would have no disciplinary or performance issues, the truth is it is bound to happen. When it happens, utilizing a progressive discipline/performance improvement policy may help successfully correct problems and lead to many lengthy employee tenures. The policy should clearly define the progressive steps so that employees understand when they may be subject to the policy and what may happen in the instance that disciplinary action is required. Steps will vary but potential steps could include an initial documented verbal reprimand, then a first written warning, followed by a second written warning and/or suspension without pay, and ending with termination.
A companion provision that lists out the types of unacceptable job performance or actions that may be subject to progressive discipline may be helpful as well. And, even with a policy in place, employees should know that progressive discipline may not always apply. For instance, let them know that the progressive discipline policy does not alter the at-will nature of employment and there are certain situations where all or some of the steps can and will be skipped.
Drug-Free Workplace/Medical Marijuana
Alcohol and drug misuse pose a threat to the health and safety of employees and to the security of a company’s equipment and facilities. Therefore, employers often institute drug-free/substance abuse policies to help establish a safe, quality-oriented and productive work environment. ADA requirements and the increased decriminalization of marijuana use heavily impact how employers navigate these policies though. The most important thing the policy should do is make clear that employees cannot work while impaired.
For instance, the ADA prohibits companies from making certain inquiries into a candidate’s or employee’s health — that includes questions about prescription drugs. Therefore, having an intentional policy is key. That could come in the form of requiring employees to notify management of any prescription or over-the-counter medication that will result in the impairment of their ability to perform the essential functions of their job. The policy should also list out the types of possible substance abuse testing applicants/employees may be required to undergo like pre-employment, random, reasonable suspicion, or post-accident depending on what relevant federal and state laws and industry regulations require. Providing examples of when the testing may be required may be helpful to employees as well. And the policy should let employees know about any employee assistance program that the company offers.
A separate policy covering medical marijuana use should be considered as well. For instance, in Arkansas, employers with 9 or more employees are covered by the Arkansas Medical Marijuana Amendment. The Amendment prohibits employers from discriminating against an applicant or employee (which includes not hiring, disciplining, failing to promote, or terminating) or penalizing an applicant or employee based upon his or her past or present status as a qualifying patient. While medical marijuana patients have these protections, companies are still allowed to take measures to regulate their workplace when it comes to medical marijuana like: (a) disciplining employees if there is a good faith belief that he or she used or possessed medical marijuana on site or during work hours; (b) disciplining employees if there is a good faith belief that he or she was under the influence of medical marijuana on site or during work hours; and (c) excluding employees or applicants from safety-sensitive positions if there is a good faith belief that they are current medical marijuana users. Safety-sensitive positions include jobs that require carrying a firearm; performing life-threatening procedures; working with hazardous or flammable material, controlled substances, food or medicine; and working with confidential information or documents pertaining to a criminal investigation, among others. Having a separate policy that covers these things in more detail may provide more clarity for employees.
Most employers in Arkansas with 3 or more employees are required to have Workers’ Compensation insurance coverage for their employees. The workers’ compensation system provides for coverage of medical treatment and expenses, occupational disability leave, and rehabilitation services, as well as payment for lost wages due to work related injuries. The policy should inform employees that if they are injured on the job while working, no matter how slightly, they are to report the incident immediately to management. They should also know that, consistent with applicable state law, failure to report an injury within a reasonable period of time could jeopardize their claim for benefits. Additional aspects will be instructions on filling out any relevant accident reports and the requirement to submit a medical release before returning to work in certain situations.
Too Many Detailed Policies
Sometimes companies may have several intricate and detailed policies. This can result in a few problems. One is making sure that policies are followed exactly as outlined in every relevant situation. Therefore, taking a close look at all non-essential policies and deciding whether they are necessary and, if so, whether they are being followed should be a regular practice. Non-essential policies are policies that are not required or encouraged by state or federal law (for example, policies on hiring of relatives, probationary periods, grievance procedures, cost of living adjustments, etc.).
Another problem could come in the form of having multiple policies that cover a situation. This could lead to confusion by both management and employees. For instance, a handbook may have a grievance policy and open-door policy highlighting an open-door approach with management. Each policy’s intended impact may be to allow employees the opportunity to air out concerns. A grievance policy taking the form of a more formal appeal process, however, could give an employee the impression they have additional rights beyond what you intend to convey. In a situation like that, a more informal open-door policy may be the route to take to avoid this.
After completing or updating the company handbook, employers should ensure all employees review it and sign an acknowledgement form that they have done so and are aware of what is required of them in the workplace. Employers should also regularly educate and train employees on the handbook policies. And policies should be revisited annually to make sure the policies are compliant with any changes in laws or circumstances within the company.