10 Ways Your Personnel Policies Are Exposing Your Company to Legal Risk (And What to Do About It)

by JD Supra Perspectives

Make sure your classification policies consider job duties and earnings, not just titles...

Your company’s personnel policies set expectations and standards for your employees, and can be used as a key defense tool in litigation. Accordingly, it is important to conduct regular audits of these policies to ensure they accurately reflect evolving legal obligations. Here are ten ways your company’s personnel policies may be exposing your company to legal risk right now (and what you can do about it):

1. Your personnel policies create contractual obligations.

Even if your state follows the “at-will” employment doctrine, make sure to include language in your personnel policies and handbooks that make it clear that these documents do not create a contract and that employment remains at-will.

2. You do not have a workplace bullying policy.

Although workplace bullying is different from workplace harassment, the two are often linked. For this reason alone, your company should have a policy that clearly delineates a no-tolerance policy with respect to bullying in the workplace and sets forth an open door policy for reporting concerns about such conduct in the workplace.

3. You have an overly stringent leave of absence policy.

A leave of absence policy that mandates automatic termination of an employee after exhausting a certain amount of leave is a red flag. Your leave policies should make clear that employment status will be determined on a case-by-case, individualized basis, and that certain leave requests may be denied if they would cause an undue hardship for the company.

4. Your social media and confidentiality policies go too far.

Failing to have a social media policy could jeopardize your company’s legitimate interest in the preservation of confidential, private, and proprietary business information. At the same time, employers must take care not to interfere with the rights of employees to discuss the terms and conditions of employment for certain purposes. Make sure your confidentiality provisions are narrowly tailored and be careful not to use broad, general prohibitions. Include examples of improper conduct so it is clear that your policy is not interfering with protected activity.

5. Your wage and hour policies need an overhaul.

Make sure your classification policies consider job duties and earnings, not just titles. Make sure any unpaid interns are not actually employees. For non-exempt employees, remember it’s permissible to set expectations and standards with respect to working overtime, but all time worked must be paid.

6. Your EEO policy has not been updated in the past twelve months.

Your EEO policy should be revisited on a regular basis to ensure coverage of all protected classes, the definition of which is constantly being revisited and updated. It should be updated to reflect the constantly evolving definition of retaliation, and, for federal contractors, to reflect new requirements that went into effect in 2014.

...laws governing pregnancy rights and access to employer-provided benefits have expanded significantly in recent years.

7. Your leave policies do not address the rights of pregnant workers and your benefits policies do not address the rights of same-sex spouses.

As I previously explained (in 5 Key Employment Law Challenges for In-House Counsel), laws governing pregnancy rights and access to employer-provided benefits have expanded significantly in recent years. More employees now are entitled to the protections of these laws. In consultation with your legal counsel, review and update your leave and benefits policies to ensure compliance with recent changes in the law.

8. Your hiring policies require too much background information from applicants.

When asking applicants to provide criminal history, consider limiting the temporal scope and subject matter of these requests and make sure these inquiries are relevant to the position being sought. Your policies should clarify that the existence of a criminal record or an arrest record does not automatically exclude an applicant from employment.

9. Your policies regarding hiring, promotion, and discharge are too subjective.

Have a procedure or policy in place for all major employment actions so that, when and if your company is asked to provide an explanation for a particular action, you have more than just your word. There is certainly always going to be a human, subjective element in employment decisions and it is neither possible nor desirable to eliminate this aspect of our jobs. But, employers are better able to defend their employment decisions when they can point to documentation and policies that set forth objective, clear, and neutral criteria for hiring, employment, and discharge (provided, of course, they followed the criteria for the employment action at issue).

10. Your non-retaliation policy makes promises that your company cannot keep.

Your non-retaliation policy should provide a reporting mechanism with multiple channels. It should not guarantee confidentiality. It should not guarantee that disciplinary or other action will be taken. It should make clear that the reporter may not be informed of the outcome of an investigation, depending on the sensitivity of the matter. It should make clear that details are critical to an effective investigation, and encourage the reporter to provide whatever facts are available. It should clarify the company’s stance against retaliation, but it should also remind employees that the protections only apply to persons who make such reports in good faith.


[Rebecca Signer Roche serves as senior counsel on all labor and employment matters for a multinational defense company's global operations and worldwide workforce of 25,000+ employees. Previously, Rebecca was a labor and employment associate at Littler Mendelson, P.C. and at McGuireWoods, LLP. Connect with Rebecca on Twitter and LinkedIn.]

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