Much of the legislation passed in 2011 goes into effect on January 1, 2012. Employers should update their employee handbooks or other policies to reflect these legislative and other changes. Here are some of the most significant changes facing California employers.
Health Benefits During Pregnancy Disability Leave
Under current law, California employers with five or more employees are required to provide up to four months of unpaid pregnancy-related leave (“PDL”). Generally, however, the employer need not provide health benefits, unless it provides those benefits to employees on similar leaves. Larger employers (those with 50 or more employees in a 75-mile radius) must also continue health benefits for the first 12 weeks of PDL, if the leave is also protected by the federal Family and Medical Leave Act (“FMLA”).
A new law requires employers to extend health benefits during any PDL, regardless of FMLA eligibility or coverage. Therefore, the law applies both to smaller employers not subject to the FMLA, and to leaves not protected by the FMLA. Employers should update their policies to reflect the new requirements.
In 2011, the National Labor Relations Board (“NLRB”) carefully scrutinized several attempts by employers to regulate employee use of social media sites, like Facebook and Twitter. Under the National Labor Relations Act, employees are protected when engaging in “concerted activities” for the purposes of collective bargaining, which generally means they have a right to discuss their working conditions with one another. The NLRB’s guidance makes clear that when an employee uses social media to raise concerns about the working environment, versus simply complaining about personal gripes, the employer cannot interfere.
However, an employer can still control employees’ abuse of social media with a well-crafted policy. The policy should make clear that employees may not use work time to access social media (unless that is the employees’ job, of course), and are not permitted to hold themselves out as employer representatives or share non-public employer information. While an employer may not prohibit all negative statements about the employer’s working conditions protected by the NLRA, it can remind the employee that his or her posts may be read by others, including clients and other professional contacts.
Also to prevent social media problems, an employer can add an “Open Door” policy to the handbook notifying employees to whom they may bring complaints within the organization. Such a policy will give employees the opportunity to express frustrations privately, instead of a public forum.
Timekeeping for Non-Exempt Employees
The federal Department of Labor recently introduced a smartphone application that allows employees to track their work hours. An employee who claims a violation of wage and hour laws-for example, missed meal and rest periods-can now easily and surreptitiously track alleged violations without the employer’s knowledge.
An employer cannot prohibit employees from tracking their own time. However, the handbook should include a timekeeping policy that specifies that nonexempt employees are required to submit accurate timesheets and notify the employer of any discrepancies, unrecorded work hours, or missed meal or rest periods. Also, the handbook should instruct exempt employees to notify the employer if they believe they are improperly classified, to help avoid hefty misclassification claims for unpaid overtime and other wage and hour violations, documented with the assistance of the new smartphone application.
In a 2011 case, Sullivan v. Oracle Corp., the California Supreme Court held that non-exempt employees from other states who were working temporarily in California were entitled to the protections of California overtime laws when working in the state. The case reminds employers with multi-state operations to pay careful attention to policies on business travel, particularly for non-exempt employees. While the travel rules are complicated, generally non-exempt employees are entitled to be paid for all business-related travel time and expenses. Employers also should be ready to pay non-exempt employees based in other states in accordance with California law when these employees work in California for any significant time period.
How to Make Handbook Changes
When making changes to a handbook, an employer must decide how to notify employees. If there are many changes, it may choose to issue a new version of the handbook. For only a handful of changes, the employer may instead provide employees with an addendum to keep with the current handbook. And if the handbook is electronic (for example, on an intranet site available to all employees), the employer may send a link to the updated material.
No matter what method the employer uses, it should obtain each employee’s acknowledgement of the responsibility to read and comply with the handbook.
Other Changes to Employer Policies and Procedures
The above represent significant legal developments employers should consider including in revised employee handbooks. There of course have been other developments that do not require handbook changes or that are not covered here. We will do our best to address these in the weeks and months to come. Happy holidays and a safe and healthy 2012 to all.