Question

I am a Human Resources Manager for a company with seventy-five employees. We have not updated our employee handbook in about three years, and I am wondering if it is time to update, and how often we should review and update our handbook?

Answer:

Employment law is rapidly changing, with new legislation and case law developments each year, so it is important to keep your employee handbook up to date. Generally, employee handbooks should be reviewed every two to three years, and updated if necessary. Your handbook is an important source of information for your employees, and a significant management tool. It is essential that your employment policies are applied uniformly to all employees to achieve fairness and avoid claims of discrimination, and a well-drafted handbook can help with the consistent application of policies.

Changes in the law in the past 2 years may require revisions or additions to your handbook in the following areas:

· Gender Identity. Employee Handbooks may be revised to include gender identity as a protected category in harassment, discrimination and equal employment opportunity policies. Gender identity was added to the list of protected characteristics in January 2004. This change defines gender as an individual’s actual sex or a third party’s perception of the individual’s sex.

· Crime Victims Leave. Effective January 1, 2004, employers in California must provide an employee who is a victim or related to a victim of certain crimes unlimited time off to attend judicial proceedings related to that crime. The Crime Victims Leave law provides leave to victims of violent felonies, serious felonies and felonies relating to theft or embezzlement.

· Paid Family Leave. This law provides disability compensation through the state Employment Development Department to workers who suffer a wage loss when they take time off work to care for a seriously ill family member or to bond with a new child. Eligible employees may receive up to six (6) weeks of benefits in a twelve (12) month period.

· Domestic Violence and Sexual Assault Leave. California law requires employers to provide victims of domestic violence or sexual assault unpaid time off from work to seek medical attention, obtain services from a shelter or rape crisis center, obtain counseling, or participate in safety planning.

· No Fault Attendance Policies. California law provides that an employee may use up to one half of his or her accrued, unused sick time, to attend to the illness of a child, parent, spouse, domestic partner, or child of spouse or domestic partner. This is known as “kin care.” Effective January 1, 2003, an employer may not have any employment policy that counts sick leave used for kin care as a basis for discipline.

· Sexual Harassment. Existing unlawful harassment policies should be reviewed to ensure they prohibit sexual harassment by non-employees, and advise employees to immediately report sexual harassment by non-employees. Actionable sexual harassment now includes sexual harassment by nonemployees if the employer knows or should have known of the conduct and fails to take appropriate corrective action. The sexual harassment laws also apply to sexual harassment of applicants or people who provide services pursuant to a contract if they are harassed in the workplace by non-employees.

· Registered Domestic Partners. Effective January 1, 2005, registered domestic partners have the same rights, protections, and benefits, and are subject to the same responsibilities, obligations, and duties under law, as are granted to and imposed upon spouses. Employment policies that confer benefits on spouses will have to be reviewed to determine the effect on registered domestic partners. The California Family Rights Act (“CFRA”) will likely be interpreted to permit an eligible employee to take 12 weeks of CFRA leave to care for a registered domestic partner (or the child of a registered domestic partner), and 12 weeks of leave for the employee’s own serious health condition under the FMLA, resulting in a potential total of 24 weeks leave in a 12 month period.

· Medical Disability Leave. Employment discrimination claims are on the rise, and many employers have policies that relate only to a work related injury, or leave under the Family Medical Rights Act. However, an employer may be legally required to extend an FMLA leave, or grant a medical leave to an employee who is not eligible for FMLA, as a reasonable accommodation for a disability. It is important to have a medical disability leave policy that clearly defines the employee’s medical leave rights, explains the medical certification requirements, benefit continuation, and return to work protocol.

· Right To Inspect Payroll Records. Effective January 1, 2003, employers must provide copies (at the employee’s cost) of a current or former employee’s payroll records or permit the employee to inspect the records. The employer must provide copies or permit inspection within 21 days of receiving an oral or written request from employee.

In addition, you should make sure that your handbook contains a valid at-will employment statement if your employees are at-will employees. Your unlawful harassment policy should comply with DFEH guidelines and include all forms of unlawful harassment, not just sexual harassment. You may want to review and update your electronic communications and computer use policy. It is also important to review your written policies to make sure they are consistent with actual practice in the workplace. Finally, obtaining a signed acknowledgement of receipt of the handbook is essential.

– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2005 Articles