Employee Handbooks – Part 1: Anti-Harassment Policies and Training in the #MeToo Era

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.

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Employee Handbooks: What’s New and Why Does It Matter?

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.

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Check Your Employment At-Will Disclaimers: New Jersey Appellate Court Scrutinizes Company’s Code of Conduct

A recent decision by the New Jersey Appellate Division is a glaring reminder for employers in New Jersey and elsewhere to review their employee handbooks, manuals and other codes of conduct periodically to ensure that their employment at-will disclaimer language is clear and prominent in compliance with the seminal decision on this issue, Woolley v. Hoffmann-La Roche, Inc. 99 N.J. 302, modified, 101 N.J. 10 (1985), and its progeny.

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Employers Should Not Rely on Employer Handbooks to Create Enforceable Arbitration Agreements

By Vik C. Jaitly

In a recent published opinion, the New Jersey Appellate Division held that an arbitration clause in an employee handbook was unenforceable because the handbook also contained standard disclaimer language stating that the handbook did not create an employment contract. The Court’s decision, in Morgan v. Raymours Furniture Co., Slip Op. A-2830-14T2, 2015 WL 9646045 (N.J. App. Div. Jan. 7, 2016), makes clear that arbitration agreements should ideally be separate, stand-alone documents, not provisions in employee handbooks.

On three occasions during the course of his employment with defendant Raymours Furniture Company (“Raymours”), plaintiff Grant Morgan acknowledged receipt of an employee handbook. The handbook included a mandatory arbitration clause and a waiver of the employee’s right to sue in court. According to Morgan, after he complained about age discrimination in the workplace, Raymours presented him with a separate, stand-alone arbitration agreement and told him to sign the agreement or Raymours would terminate his employment. Morgan refused to sign and Raymours fired him.

Morgan filed a lawsuit against Raymours (and two individual Raymours managers) asserting age discrimination under the New Jersey Law Against Discrimination, wrongful termination and other causes of action. The defendants filed a motion to compel arbitration. The trial judge denied the motion, and the defendants appealed.

In reviewing the trial court’s decision, the Appellate Division considered the disclaimer contained in the employee handbook, which stated:

“Nothing in this Handbook or any other Company practice or communication or document, including benefit plan descriptions, creates a promise of continued employment, [an] employment contract, term or obligation of any kind.”

The Court also considered the text of the electronic form on which Morgan had acknowledged receipt of the employee handbook, which stated that the employee received the handbook and:

“understand[s] that the rules, regulations, procedures and benefits contained therein are not promissory or contractual in nature and are subject to change by the company.”

The Court recognized that Raymours included these disclaimers because of New Jersey Supreme Court precedent in Woolley v. Hoffman-LaRoche, Inc., 99 N.J. 284, 309, modified, 101 N.J. 10 (1985), holding that they may be necessary to defeat a claim that the handbook created implied contractual rights and duties. Nonetheless, the Morgan Court explained that “it is simply inequitable for an employer to assert that, during its dealings with its employee, its written rules and regulations were not contractual and then argue, through reference to the same materials, that the employee contracted away a particular right.” Moreover, the Court explained, for an arbitration clause to be enforceable, the employee must “clearly and unambiguously” agree to a waiver of his or her right to sue.

In light of the disclaimers, the Court concluded that Morgan had not clearly and unambiguously agreed to waive his right to sue. The Court reasoned that by “inserting such a waiver provision in a company handbook, which, at the time, the employer insisted was not ‘promissory or contractual,’ an employer cannot expect – and a court, in good conscience, will not conclude – that the employee clearly and unambiguously agreed to waive the valued right to sue.” The Court further reasoned that merely obtaining Morgan’s acknowledgment that he received the handbook did not constitute his agreement not to sue. The Appellate Division affirmed the trial court’s decision denying the motion to compel arbitration.

One’s immediate reaction to the Morgan decision may be that it leaves employers with two untenable options. They can either: (1) issue handbooks with enforceable arbitration provisions that may inadvertently create contractual rights for employees; or (2) issue handbooks with unenforceable arbitration provisions that will not inadvertently create contractual rights for employees. However, employers also have a third, better option. An employer wishing to implement a mandatory arbitration program should require employees to sign a separate, stand-alone agreement in which the employee clearly and unambiguously agrees to arbitration. Meanwhile, employers should continue to include Woolley disclaimers in their handbooks. Overall, while arbitration programs offer many benefits, it is critical that employers exercise great care to ensure that they are enforceable.

No More No-Gossip Policies?

A National Labor Relations Board (NLRB) administrative law judge ruled recently that the “no-gossip” policy of Laurus Technical Institute, a for-profit technical school located in Georgia, broke federal law because it was overly broad, ambiguous and restricted employees from discussing or complaining about any terms and/or conditions of employment, even though nothing in Laurus’s policy directly addressed discussions about wages, hours or other employment terms and conditions.

Kate Gold, partner in the Los Angeles office, recently told Human Resource Executive Online during an interview on the topic of the Laurus decision and no-gossip policies for employers, “Though the NLRB has been focused on other policies that could violate an employee’s right to engage in protected concerted activity — such as social media or confidentiality policies — no-gossip policies can be especially problematic.”

Kate went on to say “I would not include it among the top 10 or even the top 20 essential policies an employer should include in a handbook or policy manual, such as an at-will, anti-harassment or reasonable accommodation policy. However, given the type of concern raised by a no-gossip policy, there could be other employer policies that are problematic for the same reasons. The issue raised by an overbroad no-gossip policy is whether it constitutes an unlawful restriction on an employee’s right to engage in protected concerted activity under Section 7 of the National Labor Relations Act.”

For the full text of the article click here.

Obligations for Employers Before, During and After a Storm

By: William R. Horwitz

As cleanup from the Nor’easter that pummeled the East Coast last week continues, and the prospect of more snow looms, we hope that you and your families, as well as your businesses and employees, are safe and warm and that the lights are on. As this has been one of the more problematic winters in recent memory, we wanted to remind employers of some of their obligations before, during and after a storm.

Temporary Closings

Unless your agreements or policies provide otherwise, you are generally not required to pay non-exempt employees when they are not working. Therefore, if your business is closed and your employees do not report to work, you are not obligated to pay non-exempt employees. However, make sure that these employees are not checking work e-mails, communicating with supervisors about work-related issues or otherwise working from home, because non-exempt employees are entitled to receive pay for these activities even if they do not physically report to work.

Note that some states require an employer to pay employees for reporting to work, even if the business closes and the employer sends them home. For example, a New Jersey employer must pay employees who report to work at least one hour of pay. A New York employer must pay employees who report to work at least four hours of pay (or the number of hours in the scheduled shift if it is less than four hours). With regard to exempt employees, they are generally entitled to receive their full salaries, even if the business is closed – at least if the shutdown lasts for less than a week. If a business is closed for an entire week and an exempt employee performs absolutely no work during that time, the employer is generally not required to pay the employee for the week.

When a business is temporarily closed, the employer can require exempt employees to use accrued vacation time for the time off, but this requirement should be set forth clearly in the Employee Handbook and any employment contracts.

Cleanup

After a storm passes, employees whose homes remain without power, who are repairing damage to their property or whose children’s schools remain closed, may seek additional time off from work. While an employer that can afford to do so may allow additional flexibility to these employees in order to give them peace of mind and boost their loyalty and morale, these requests may otherwise be handled pursuant to the employer’s contracts and policies.

Other Issues

In addition to the above general points, employers should also be aware of state laws that affect certain employees and certain industries. For instance, in New York and New Jersey, the prohibition against mandatory overtime for health care personnel includes an exception for a declared state of emergency. New Jersey also provides protections for employees who miss work because of their responsibilities as volunteer first responders.

Conclusion

Extreme weather and natural disasters that disrupt business create big headaches for employers and employees. We recommend clear and consistent communication with your employees to avoid confusion about your expectations. Also, maintaining sound employment policies and consulting with counsel when issues arise is critical for avoiding additional headaches resulting from ensuing workplace legal liability.