Handbook Headaches Keeping Your Handbook Compliant Bismarck ND

Handbook Headaches Keeping Your Handbook Compliant Bismarck, ND March 9, 2018

Kris. Ann Norby-Jahner Bismarck Office • Attorney and Adjunct Professor • Employment Law • ERISA and Benefit Compliance • Wage and Hour Compliance • Policy Development • HR Counseling and Training J. D. , Ph. D. /ABD, M. A. • Litigation/Administrative Complaints – Discrimination • Employment Mediation – Qualified Neutral 2

Vanessa L. Lystad Fargo Office • Licensed in North Dakota and Minnesota • Wage and Hour/Compliance • Policy Development • HR Counseling and. Training • Litigation/Administrative Complaints • Investigations

Today’s Discussion • What should I include in my handbook? • What are the laws affecting my handbook? • How do I implement the policies in my handbook?

Planning: Ground Zero • Review current policies/practices • Identify policy updates/revisions • Create an outline • Seek input • Work with your legal compliance team! • Determine mode of publication & timing • Distribute handbook to employees • Receive signature/ acknowledgment • Establish system for annual review and updates

Handbook Organization 1. Disclaimer and Intro 2. Policies and Procedures 3. Standards of Conduct 4. Benefits 5. Company Facilities 6. Acknowledgment

1. Disclaimer and Introduction • Bold and Prominent Disclaimer • At-Will Statement (if applicable) • EEO Statement

Why have a disclaimer? • Employees understand: – Handbook is not a contract (and should not be construed as one) – It is not an exhaustive list of obligations – The employer may change policies, as necessary

• Poorly worded • Ensure disclaimer is: disclaimer can be – Clear INEFFECTIVE – Conspicuous • Create unwanted – Specific contractual rights • If employment is “at • Provide more rights will, ” state in disclaimer to employees than – Also provide as separate anticipated intro policy

Employment At Will • North Dakota – Employment at-will state – N. D. C. C. § 34 -03 -01 – Employment generally can be terminated at the will of either party • HOWEVER. . .

Keep in mind. . . • Employment cannot be terminated for an illegal reason. • For instance: – Discrimination based on race, sex, religion, etc. – Retaliation for reporting illegal behavior or participating in protected activity • Additional procedures may be required – Merit system – Civil service – Local policy

Equal Employment Opportunity Statement • Policy should establish the employer prohibits discrimination and harassment on the basis of any protected class in all aspects of the employment relationship. – Includes recruitment, employment, promotion, transfer, training, working conditions, benefits, wage administration, etc.

State Protected Classes • North Dakota Human Rights Act: – – – – – Race Color Religion Sex (including pregnancy) National origin Age (40 and over) Mental or physical disability Marital status Public assistance status Participation in lawful activity off the employer’s premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer • Note that political subdivisions can give preference to veterans under N. D. C. C. ch. 37 -19. 1

Federal Protected Classes • • • Race Color National origin Religion Sex* Disability Age Military service Genetic information

Special Note on Sex Discrimination • State and federal law prohibit sex discrimination • “Sexual orientation” not expressly prohibited under NDHRA or Title VII – NOTE: Is expressly prohibited if you are a federal contractor • HOWEVER, increasing number of federal courts have held Title VII protects sexual orientation – EEOC’s position for years • Even if you do not have to include in your handbook, tread lightly if any issues arise!

2. Policies and Procedures • Harassment • Reasonable Accommodations • Background Checks • Wage Deductions • Personnel Records

Harassment Policy • Prohibit any and all harassment • Identify all classes within EEO statement • Provide complaint procedures – To whom, when, how • Identify investigation procedure • Explain policy against retaliation

Sexual Harassment Policy • Identify in own section or subsection of harassment policy • Provide definition • Examples of prohibited conduct #Me. Too

= Prevent Harassment 1. Understand the Law – Title VII and ND Human Rights Act 2. Know Employee Rights – Hostile-free/discrimination-free environment – Equal treatment – Right to complain

3. Know your Obligation ⁻ Investigate. . . do not ignore! ⁻ Offer remedies 4. Understand a Workplace Investigation ⁻ Interviews, policy review, final report 5. Be proactive! ⁻ ⁻ Policy development Communication Training Follow through

Reasonable Accommodations • Americans with Disabilities Act and NDHRA protect qualified applicants and employees with disabilities • May be needed to apply • “Qualified” means able for a position, enjoy to perform the essential benefits of position, or functions of a job with or perform essential job without a reasonable accommodation duties

Reasonable Accommodation Policy 1. Applicants/employees must request accommodation 2. Supervisors must discuss with management 3. Engage in interactive process 4. No accommodation will be granted if undue hardship or threat to health/safety

Reasonable Accommodations • Key is COMMUNICATION – Communicate with management/human resources – Communicate with employee – Communicate (if necessary) with other employees

Background Checks • Reference checks • Criminal record • Driving record • Credit history

Reference Checks • Best policy is to limit information given to prospective employers and limit who provides information for consistency purposes • Why? ? – North Dakota provides immunity to employer truthfully disclosing dates of employment, pay level, job description and duties, and wage history – Employers can be immune from disclosing additional information, but presumption of good faith can be rebutted

Criminal Record • Consider inclusion of a policy if you require criminal record checks • May be required or recommended for some professions • No law in North Dakota prohibiting when to ask for criminal record

Keep in mind. . . • EEOC guidance – Use of criminal records can disadvantage some protected classes – Conviction alone should not disqualify an applicant – Disqualification may result if job-related and consistent with business necessity considering: • Nature and gravity of offense • Time passed since offense • Nature of job held • Fair Credit Reporting Act – If criminal history comes from a consumer reporting agency, employers must comply with FCRA – Requires notice and permission before gathering information – Requires notice before taking adverse action – Requires notice after taking adverse action

Credit Checks and Driving Records • Consider inclusion in policy if these checks are required for or directly related to certain positions • Remember compliance with FCRA if performed with consumer reporting agency

Wage Deductions • Do you have a policy related to wage deductions? • Common wage deductions – For voluntary benefits – As required by law • Taxes • Court order – To repay debt

Remember. . . • Employers in N. D. can withhold from compensation due to employees for: – Advances paid to employees, other than undocumented cash – A recurring deduction authorized in writing – A nonrecurring deduction authorized in writing, when the source of the deduction is cited specifically – A nonrecurring deduction for damage, breakage, shortage, or negligence authorized by the employee at the time of the deduction

Personnel Records • Generally includes: – Pre-employment info – Hiring info – Performance evaluations • Preferably signed by employee and supervisor – Performance improvement plans – Training records – Disciplinary actions • Written warnings, termination – Other actions • Promotion, demotion – – Payroll info Job history Leave Personal info

What should be separate? • I-9 Form • Employee medical records • Requests for accommodation and documents in support of accommodation

Personnel Records Policy • Who maintains the records? • Who can access the records? • Can employees request their personnel file? • To whom should they direct their requests?

Personnel Records • No general law in North Dakota requiring employee access of personnel files, BUT • Many personnel records likely are “open records” for public entities – Common exceptions include medical records, personal employee information, attorney work product

Other Policies and Procedures • • • Job duties Hours of work Meals and rest breaks Nursing mothers/breaks Grievance procedures Expense reimbursement Employee classifications Overtime regulations Timekeeping process

3. Standards of Conduct • Punctuality & Attendance • Electronic Communications & Social Media • Drugs & Alcohol – Where does Medical Marijuana now fit? !

Punctuality & Attendance – Here’s the conduct… • 20 minutes before Bob’s shift begins, Bob’s wife texts Bob’s co-worker that Bob will not be at work that day. Bob’s co-worker texts “OK. I’ll tell Supervisor” but then forgets until 2 hours into the shift. Supervisor calls Bob. No answer. Leaves message. Bob does not call back. Arrives to shift 3 days later to find that he was deemed a “no-call/no-show” and was terminated. He is shocked. • How would a clear company policy assist here?

Punctuality & Attendance Policy • Set expectations: – reliable & punctual – hours of expected work day • Notification: – identify point person – identify mode of acceptable contact (phone call, email, etc. ) • No-Call/ No-Show: – time limit before considering “voluntary resignation”? – use misconduct language to aid in unemployment hearing

Attendance: Sample Policy Language • “Reliable and punctual attendance is expected at all times and is an essential function of all positions. ” • “Ongoing unexcused absenteeism and tardiness places an undue burden on the organization and is considered to be misconduct. ” • “A no-call/ no-show will be considered job abandonment. Any employee who does not show up for work [for x # of days] and does not call ahead will be considered to have voluntarily quit his or her employment. ”

Inclement Weather – Here’s the conduct… • Snowy conditions have arrived, and Sue decides she is staying home from work. The office remains open all day, but she thinks the office should have been closed. Sue wants to be paid for the day but is told she must use vacation/PTO. She says she should not have to use PTO. She is shocked. • Who is correct? • IT DEPENDS: – Is Sue an Exempt employee? – Is Sue a Non-Exempt employee?

Inclement Weather – Understanding Non-Exempt vs. Exempt • Non-exempt = entitled to: • Exempt: salary basis + salary level + duties test = – Minimum wage, and – Overtime pay (which can be in the form of additional wages OR “comp time” for public employees only. – Receives predetermined, fixed salary – Salary minimum $23, 660 annually or $455 per week (stay tuned in 2018!) – Performs duties that qualify under an “exempt” classification

Inclement Weather 1. Sue misses work, but office still open: ⁻ ⁻ Non-exempt employee = no required pay Exempt employee = no required pay for full day absence 2. Sue’s Employer closes office due to inclement weather: ⁻ ⁻ Non-exempt employees = no required pay Exempt employees = required pay of full salary Deductions from paid leave bank may be made for either exempt or non-exempt employees if they want $$!

Inclement Weather Policy • REMEMBER! You can give always give employees greater rights/ privileges than what is required under law. You just cannot take away. • Policy: – Anticipate specific ND weather circumstances. – Develop (and follow) a clear policy & procedure. – Be consistent!

Electronic Communications – Here’s the Conduct… • HR is preparing for a meeting with Jim because: – Jim uses his work e-mail for personal communication with his dear mother who loves to send chain e-mails. He opened one of her e-mails and has shared a virus with the company. – Jim is constantly texting during working hours – both friends (personal) & employees he supervises (work-related). – Jim has access to the company Facebook page and often posts personal opinions without company authorization.

ND Protection = “Lawful Activity” • Participation in Lawful Activity off the employer’s premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer. – ND Human Rights Act, NDCC 14 -02. 4 • This could provide protection to Electronic Communications & Activities occurring outside of work / nonworking hours!

Electronic Communications Policy • Company E-mail: Authorized personnel only Keep passwords confidential NO assumption of privacy! Company monitoring No illegal conduct or language allowed – Policy violations / Legal violations = employee subject to discipline or termination – – –

Electronic Communications Policy • Text-Messaging. – Employees often text message about work! – Set expected limitations & expectations – Identify conduct that will not be tolerated • Red Flag Issues: – Personal texting during work hours – Supervisor/employee communications – Harassment/ Discrimination

Social Media Policy • • Identify Acceptable Company Use • Social media use at work? • Retaliation prohibited • Media contact on behalf of employer = usually NO GO. Give Guidelines: ⁻ Employee is responsible. ⁻ Consider risks & rewards. ⁻ Unlawful conduct may lead to discipline/ termination. ⁻ Know & follow work rules. ⁻ Be respectful. ⁻ Be honest and accurate. ⁻ Confidentiality/trade secrets.

Medical Marijuana Here’s the Conduct… • Jane is suffering from a chronic condition and has received a prescription for medical marijuana now that the new ND law is in effect. However, currently, Jane’s workplace has a clear, zero tolerance policy on drugs and alcohol and maintains a “drug and alcohol free workplace. ” Jane wants to know whether she can use medical marijuana and still report to work. • Is it time to revise the Drug & Alcohol Policy? • PROBABLY!

Medical Marijuana: What we DO Know… • North Dakota Measure No. 5 - Compassionate Care Act; approved by 64%. Effective December 8, 2016. • Registered patients can obtain medical cannabis from a licensed nonprofit compassion center. • – required to establish & implement medical marijuana program. See https: //www. ndhealth. gov/MM/. • Proposed Admin. Rules – will undergo legislative review on March 12, 2018. Effective date may be April 1, 2018.

Medical Marijuana: What we DO Know… • Employers & public places do not have to allow use. • Revised language of the law “does not prohibit an employer from disciplining an employee for possessing or consuming usable marijuana in the workplace or for working under the influence of marijuana. ” • Law does not directly address drug testing.

Revised Drug & Alcohol Policy – Medical Marijuana • Review / Revise: – Zero tolerance of any use language – Automatic discipline / termination for any use • Can Maintain: – No possession or use in workplace – No working under influence of medical marijuana – Discipline/termination for possession/use at work or being under influence at work

Other Standards of Conduct • General Code of Conduct • Discipline / Termination • Workplace Threats & Violence • Confidentiality • Dress Code

4. Employee Benefits ⁻ ⁻ Disclaimer Holidays Paid Time Off Leaves of Absence • • • Personal leave Medical Leave / FMLA & ADA Workers’ Comp. Military Leave Funeral/Bereavement Voting ⁻ Insurance & Other Benefits • Health • Dental & Vision • Life ⁻ Continuation of Benefits

Another Disclaimer? ! YEP! EXAMPLE: “The following is a summary only of the City’s present benefits. The City reserves the right to suspend, modify, or abolish any benefit not mandated by law at any time. To the extent that any of the following descriptions conflicts with any benefit plan document, the benefit plan document will control. Any questions or concerns you may have should be directed to the Office Manager. ”

Holidays • Identify Holidays • Employees who are Eligible • Identify what happens with weekend holidays • Identify paid/unpaid? • Identify pay rate for employees required to work holidays

Paid Time Off • Identify paid leave bank(s) used: – PTO, Vacation, Comp. Time (public employees only!) • • • Understand PTO payouts upon separation!! • Eligibility Requirements Accrual rate/ schedule • Process for requests Point person for requests • Any PTO, once earned or awarded = wages. Must pay out all PTO available for use at time of separation. NO policy or contract can take away this payout. “Use it or Lose it” policy = allowed.

Leaves of Absence • Unpaid personal leave • Funeral/ Bereavement Leave • Extended Medical Leave • Workers’ Compensation • Jury Duty Leave Disability Leave • Voting Leave • Military Leave • For EACH Leave of Absence, identify eligibility, notice requirements, process for approval, point person, and other anticipated issues!

Intersection of ADA / FMLA • Americans with Disabilities • Family Medical Leave Act: Physical or Mental – 12 weeks’ job Impairment that protection for: “Substantially Limits” one – Employee’s own serious health condition or or more “Major Life condition of spouse, child, Activities”: – Very Broadly interpreted – Must engage in an Interactive Process with employee – Must provide Reasonable Accommodation or parent – Birth, adoption, foster care placement of minor child – Qualified service member leave

Intersection of ADA / FMLA Please do not ever…. …ever… …develop a policy or a practice… …automatically terminating an employee who does not immediately return from an FMLA leave of absence! • Extended leaves of absence may qualify as a reasonable accommodation under the ADA! • •

ADA/FMLA - Handbook Take-Away? • No automatic termination provisions for disability. • Provide proper FMLA language and compliance language. • Provide proper ADA language and compliance language. • Identify Point of Contact for medical leaves of absence requests! • Provide notice of processes & extensive paperwork!

Insurance & Other Benefits • Disclaimer!! – Summary of benefits only. – Present benefits offered. – Must refer to plan documents. – Any conflict, plan documents control. – Questions directed to Office Manager. • Identify available insurance benefits: – – – Health Dental & Vision Life Insurance Disability Insurance Pension or other plan

5. Company Facilities EXAMPLES: • No Smoking • Company Property & Workplace Searches • Health & Safety • Housekeeping Matters – Supply purchases – Cell phone use – Office cleaning

6. Acknowledgment Form • I have read the handbook and understand the POLICIES, including… • I understand the handbook is not a CONTRACT… • I understand my employment is AT-WILL… • I agree to the policies herein and agree to ABIDE… • I agree to the company ELECTRONIC communication policy… • ETC….

Overall “Should” Have Policies • Anti-Harassment • Equal Employment • Confidential Information • Leave Policies – ADA – Anti-Discrimination • Drug/Alcohol policy • Workplace Violence • • • Timekeeping/overtime • • Employee Classifications • • Discipline / Termination – Paid leave – Unpaid leave – FMLA & ADA leaves Call-in procedures Pregnant/Nursing mothers Social Media Meal/Rest breaks 65

Overall Policies to Avoid • No fault attendance policies • Very detailed benefits policies • Strict progressive discipline policies • Policies providing for “maternity” leave without regard to disability & accommodation 66

What’s an Employer to Do? 1. Review your handbook and policies regularly. 2. Communicate these policies to employees. 3. Communicate and TRAIN supervisors on policies. 4. Add specific Disclaimers. 5. Work closely qualified experts…such as employment lawyers! 6. Stay tuned in 2018…

2018 is the year for review! • #Me. Too Sexual Harassment – Policy Review Time! • Paid/Unpaid Leave – Watch for directives from EEOC regarding maternity/paternity leave & federal law on bereavement leave. • Pay Statements – Watch proposed federal law, requiring break down of pay calculations, leave time, overtime, etc. on pay statements. • Overtime – Revised salary threshold coming Oct. 2018! • DOL Opinion Letters – They’re back!

Questions & Answers 70

Thank You! VOGEL LAW FIRM Locations in Fargo, Bismarck, Grand Forks, Moorhead, and Minneapolis knorby-jahner@vogellaw. com vlystad@vogellaw. com For Copies of Power. Point Slides www. Vogellaw. com

The Fine Print • These materials do not constitute, and should not be taken as legal advice as to any particular situation. Although every effort has been made to insure the accuracy of these materials and comments at this seminar, neither the presenter nor the Vogel Law Firm assume any responsibility for any person’s reliance on written or oral information disseminated at or in connection with this seminar. Each participant should independently verify the accuracy of these materials and any statements at this seminar to determine the legal consequences of any given situation. In other words, you are on your own. Vogel Law Firm 2018© 72