Late last month, we previewed our upcoming series of blog posts discussing Employee Handbooks – What’s New and Why Does it Matter? If you happened to read that post, then you know we introduced the topics for parts one through six of our handbook series. We will now embark on part one of our journey to the land of employee handbooks. This journey will have several other stops along the way, but for now our topic is anti-harassment policies and training in the #MeToo era.
Employee handbooks. Say those words around any seasoned HR professional and watch them cringe. Yes, handbooks are often relegated to the “I’ll get to that when I have time” list, which is understandable in today’s busy corporate environment where tasks critical to the business receive priority status. But handbooks are important and deserve inclusion on the list of asset protection initiatives for the new year. Why, you ask? Because a poorly drafted handbook exposes a business to unnecessary risk of liability. Liability can range from the more obvious—failure to make appropriate at-will employment and no contract disclaimers may bind the company to statements in the handbook where flexibility is needed—to the less obvious—failure to address relevant state and local laws and the affirmative obligations placed on employers in those laws can foster a culture of noncompliance and possible class actions. And putting aside the liability issues for a moment, a properly drafted employee handbook can be used as a guidebook for managers, a go-to resource for a company’s workforce, and an effective tool for communicating performance and conduct expectations.
Many employers have opted to use technology to their advantage by adopting biometric timekeeping systems or similar systems for workplace access. But adopting such technology is not without risk. Indeed, with data breaches on the rise, employees and consumers have become more vigilant about protecting their personal data and using state privacy laws and the like to do so. The Illinois Biometric Information Privacy Law is one such law that places restrictions on businesses that collect biometric information of individuals. That law defines biometric information as “any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier [i.e. ‘a retina, iris scan, fingerprint, voiceprint, or scan of hand or face geometry’] used to identify an individual.” 740 ILCS 14/10.
Federal law requires most employers to provide reasonable break time to employees who need to express breast milk during the workday and to provide a place free from intrusion (not a bathroom) where an employee can express milk, unless doing so presents an undue hardship. Many states and localities have adopted similar lactation laws, in some cases providing rights beyond those afforded under federal law. New York City law currently requires that employers with four or more employees provide reasonable break time to employees who need to express breast milk during the work day and to make reasonable efforts to provide a private room to do so.
Effective March 18, 2019, New York City employers will have to ensure that the room provided for expressing milk is in reasonable proximity to the employee’s work area, has a refrigerator for storing break milk, an electrical outlet, a chair, and a surface on which to place a breast pump and other personal items. The lactation room must also have nearby access to running water. And if the lactation room is not solely used for expressing milk, then when the room is being used by an employee to express milk the employer must provide notice to other employees that the room is given preference for use as a lactation room.
On March 6, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) announced a new pilot program through which employers may settle potential overtime and minimum wage claims under the FLSA by paying back pay owed to the affected employee(s), but without paying civil penalties or liquidated damages. The Payroll Audit Independent Determination (PAID) program will be available for six months, after which the Department will evaluate the viability of the program. This program is purely voluntary, both for employers, in that they would need to self-disclose the violation(s) to the WHD, and employees, who may choose to accept the back pay being offered by the employer as full settlement of the potential claim, or decline the offer and file suit, thus preserving the right to recover liquidated damages if successful. If the employee chooses to accept the back pay, and thus settle the potential claim by signing a release of that claim, the WHD will only approve a release if it is tailored to the identified violations and the time period covered by the back wages payment. Employers are not eligible for the program if they are already under investigation by the WHD, involved in litigation or arbitration regarding the particular claim, or the employee has already communicated an interest in litigating or settling the issue. Claims that could be resolved through this program include misclassification of employees as exempt from overtime or failure to pay for “off the clock” work.