6 issues to consider when updating your employee handbook

employee handbookAn out-of-date employee handbook is more of a liability than an asset. With ever-evolving laws and regulations, it is important to ensure that your company’s handbook is current. When reviewing and revising your handbook, take heed of the following hot-button employment law topics.

1. LGBT protections

Laws continue to expand protections afforded to lesbian, gay, bisexual and transgender (LGBT) employees. Courts have held that transgender individuals are protected by Title VII’s protection against discrimination “because of sex.”

The EEOC recently filed two cases against employers alleging discrimination based on sexual orientation. Many states and municipalities also have enacted laws and regulations expanding employment protections to include LGBT individuals.

Given this trend, ensure that your equal employment opportunity policies provide equal protection to employees without regard to sex, sexual orientation, gender identity/expression or marital status.

Moreover, in light of the U.S. Supreme Court’s recent decision recognizing same-sex marriages, you are required to provide same-sex married couples with the same benefits as heterosexual couples. Revise your policies on employee benefits and leaves of absence to ensure that same-sex couples receive equal treatment.

2. Pregnant employees

The Pregnancy Discrimination Act prohibits discrimination based on pregnancy in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training and benefits. The PDA also requires employers to treat pregnancy disability the same as other disabilities for purposes of sick leave and temporary disability benefits.

Likewise, you must provide reasonable accommodations for pregnancy-related disabilities on the same basis as you accommodate employees who are disabled for other reasons. Make sure your EEO policies include pregnancy in the list of protected categories and that policies on accommodations include accommodations for expectant workers.

3. Dress codes & religion

In June 2015, the U.S. Supreme Court held that an employer can be liable for failing to accommodate a religious practice, even if the employer lacks actual knowledge of a need for an accommodation. The case was brought against Abercrombie & Fitch, which had a “Look Policy” that prohibited caps. A job applicant, who was a practicing Muslim, applied for a retail sales position and wore a headscarf to her interview. The district manager told the recruiter that the headscarf would violate the Look Policy and instructed her not to hire the applicant.

In light of this decision, ensure that your dress code policies are not biased against particular religious groups. According to the Court, even seemingly neutral policies like Abercrombie’s Look Policy are not discrimination-proof. Rather, Title VII gives religious practices “favored treatment” and “requires otherwise-neutral policies to give way to the need for an accommodation” in the absence of undue hardship to the employer.

4. Smoke-free policies    

Review your policies against smoking in the workplace to account for changes in state laws involving marijuana use (both medicinal and recreational) and the increased use of e-cigarettes.

Policies should state expressly that employees are prohibited from using or being under the influence of marijuana in the workplace. Revise drug-testing policies to deal with employees who test positive for marijuana and claim a medicinal need for the drug.

Smoking policies should expressly state that e-cigarettes are treated like other tobacco products.

5. ‘Concerted activity’

The National Labor Relations Board last year reiterated that handbook policies are unlawfully overbroad if they leave employees with the impression they cannot discuss wages, hours and other terms and conditions of employment.

To avoid a National Labor Relations Act violation, define terms such as “confidential information” with specific examples. Expressly state that policies are not intended to limit employees’ ability to discuss employment conditions.

6. For multistate employers

Employers with employees in multiple states must consider legal variations in all of the jurisdictions where they do business.

Numerous states and municipalities, for example, have their own paid sick time rules. Some states have family and medical leave laws that go beyond what is required by the federal FMLA. Take those state and local laws into account when drafting your policies and procedures. In addition, include a disclaimer specifying that legal requirements will govern as the final word in the case of any inconsistencies between the handbook and the law of a particular jurisdiction.

Final note: While there are many benefits to distributing handbooks electronically, employers that use the web as the sole method of handbook distribution should consider whether all employees have access. Take steps to ensure that employees acknowledge receipt of the handbook and are aware of their responsibility to read it.


Tracey E. Diamond is a senior attorney with Pepper Hamilton LLP and practices in the areas of employment law, HR counseling and employment litigation. Tracey can be reached at (215) 981-4869 or diamondt@pepperlaw.com.