Updating your employment law handbook: A primer for in-house counsel

What key updates should I make for 2022?

The new year is quickly approaching and now is the perfect time to assess your current employment law handbook and decide what changes or updates are needed — it is rare that the answer is “none.” Here are a handful of potential updates to consider in light of recent changes in the law or the enforcement policies of the new administration:

• Remote work policies. Remote work has become the new normal. If your handbook does not include a fulsome set of policies and expectations around expectations for those working remotely, now is the time to get started. In particular, it is getting harder to separate “at work” from “at home” these days, so ensure your employees know the rules around tracking their work time, overtime, etc.
• Safety and security plans. It seems like every day there is some type of workplace tragedy in the news. While no one likes to think about them, the modern GC should ensure there are proper plans for things like active shooter, robbery, hostage taking, severe weather, fire, power outage, arrest on campus, and any other number of situations that can affect the safety and well-being of your employees. Planning ahead and giving clear procedures can save lives.
• COVID plans. At some point, people will indeed return to the office. When they do, you should have guidance on how the company will operate on a day-to-day basis. Will vaccinations be required? What testing, distancing, masks, restricted travel guidelines, etc. will there be? Having clear guidance on what employees can expect and what they are expected to do while on site will save a lot of headaches.
• LGBTQ+ policies. Employers cannot fire employees for being LGBTQ+ as decided by the U.S. Supreme court last year. There should be policies in place to account for this new protection alongside existing language around non-discrimination generally.
• Sick leave/Leave mandates. While the federal government has not yet acted, many states — such as New York and Colorado — now require paid sick leave. Likewise, in the wake of COVID, there are numerous laws around paid leave for certain workers. Are your policies and procedures current in this area?
• Minimum wage. Similarly, many states and cities are enacting their own minimum wage requirements. Stay current on these and stay out of trouble.
• Drug testing. As marijuana is legalized in more states — 15 for recreational use and growing — drug testing gets trickier. You do not need to let people who are “high” come to work but you must make accommodations to protect registered uses of medical marijuana from discrimination. In-house counsel should be paying close attention to this ever-changing area of the law.

There are of course many other HR rules and regulations and employment-related issues to pay attention to. The key is having a thoughtful process in place to spot issues early and ensure they are dealt with in the employment law handbook.  

What else should I be doing?

When it comes to employee handbooks, there are a number of best practices that in-house counsel should adopt going forward:

• If you operate globally, your employment law handbook will likely differ dramatically depending on the jurisdiction. Similarly, you may have different handbooks or supplements based on a particular state in the U.S. Remember that one size likely does not fit all.
• Plan on updating your employment law handbook every year. It should not be a once-in-a-while exercise — find your partners on the HR team and set up a regular cadence to meet, discuss, and revise. Quarterly meetings with HR are not too frequent given the rapid pace of change in employment laws and regulations. If you are a federal contractor, the pace can be even faster and more dramatic.
• Pay attention to the NLRB and who is in power in Washington. Unfortunately, businesses can get whipsawed depending on whether the NLRB is controlled by Democrats or Republicans.  Regardless, it is on the in-house legal team to pay attention and raise issues.
• Handbooks are essential but keep in mind that your audience did not go to law school. Try to bring things down to the right level, keep the wording plain and as straightforward as possible. Policies that are easy to read, clear, and are customized to the business will go a long way to ensuring compliance.
• Likewise, employment law handbooks are basically useless without a fulsome training program that reaches employees, management, and even the board of directors. Training should include what to do if you see something happen to someone else — versus having it happen to you — and ensure that managers understand their responsibilities to assist and protect their workers when problems arise. Trying to hide it or sweep it under the rug will only make it far worse in the end than if the issues had been dealt with immediately.

Where can I go for help?

While having experienced employment counsel as part of the in-house team or on call is incredibly helpful, not all legal departments have the benefit or the budget for such assistance. The employment law resources available on Practical Law can be a life saver, enabling in-house lawyers access to policies, checklists, forms, templates, and summaries of the law, all kept updated and current by some of the best lawyers in the country.

The cost of Practical Law is usually dwarfed by the first outside counsel bill on a serious employment matter that could have been handled differently (and properly) by in-house counsel if they had the right resources available to them at the first instance.