Are you thinking of banning after-work happy hours or disciplining staff members for complaining about their jobs on social media? You might want to think carefully before you make the announcement — you could be violating your employees' legal rights.
"While, on the surface, a number of policies may seem benign, certain language within the policy may lead to potential problems," said Aldor Delp, vice president of HR solutions for ADP Small Business Services. "In many instances, there is not a specific law that prevents employers from having certain policies. It comes down to how such policies are drafted and enforced. Employers may inadvertently run afoul of the law by failing to consider the impact of workplace rules on employees' privacy and nondiscrimination rights."
In a recent webcast for ADP entitled, "Can My Company Ban That? Social Media, Body Art, Smoking & More," Delp discussed a few different "gray areas" that could land your company in legal trouble if you're not careful.
Personal appearance. It's reasonable to want employees to adhere to certain attire and appearance guidelines to maintain a professional image. However, it's important to make sure your policies don't conflict with requirements due to an employee's religion, culture or other protected-class characteristics, and if they do, reasonable accommodations may have to be made. Any restrictions or rules regarding tattoos, piercings, head coverings, facial hair, "appropriate" clothing, personal hygiene, etc. should be clearly stated, applied fairly and discussed in private if you feel an employee is violating them.
Off-duty conduct. When your employees are off the clock and off-premises, you shouldn't police their personal activities, such as smoking or consuming alcohol. Some states even explicitly protect workers from "lifestyle discrimination." If any off-duty conduct affects an employee's performance, you should address it from a performance perspective and follow your company's disciplinary protocol.
Social media. Section 7 of the National Labor Relations Act (NLRA) states that employees have the right to discuss wages, benefits and other terms of employment, and this applies to their social media activity as well. Prohibiting employment discussions on social media and, in some states, asking for employees' personal account access, is against the law. Word your policies carefully, and ensure that any disciplinary action based on a social media post does not infringe on an employee's NRLA rights. [Balancing Employee Monitoring with Privacy Concerns]
Smoking/e-cigarettes. Any employer can prohibit smoking of regular cigarettes or e-cigarettes in the workplace and on company property. However, many state laws have guidelines about smoking within a certain distance of entrances and ventilation systems. If your employees are allowed to smoke outside the office building, make sure your policy is consistent with these restrictions.
Workplace dating. Outright bans on romantic involvement among employees are difficult to enforce, but you may wish to discourage relationships that pose a conflict of interest, such as one between a boss and employee, or require employees to disclose their relationship to the company. Some employers take a "hands-off" approach and only respond if the relationship negatively impacts the workplace, but all employees should be aware of the procedures and policies regarding complaints about harassment and inappropriate conduct.
Foreign languages. An English-only workplace language policy may violate Title VII of the Civil Rights Act, especially if it prohibits employees from speaking specific other languages. Requiring employees to speak English in certain conditions, such as communicating with English-only customers/colleagues or cooperating during an emergency situation, may be permissible, provided it is necessary for workplace efficiency and safety.
But it's not just employee behavior policies that can lead to trouble. Alon Rotem, general counsel at online legal service Rocket Lawyer, reminded employers that the consequences of noncompliance with current employment laws around issues like leaves of absence, employee classification, wages and work hours can be dire.
"Poorly drafted employment policies can easily create headaches for HR departments," said Rotem, whose company recently launched a workplace benefit solution called Legal Benefits. "Even otherwise compliant HR policies can get employers into trouble if they are not also applied fairly. More often than not, the errors result from simple lack of knowledge of the law than any nefarious plan by the employer to shortchange their workers."
Common missteps include inaccurate guidelines for wage and hour policies as they relate to overtime and breaks, as well as exempt/nonexempt misclassifications as they relate to job descriptions, Rotem said. Ideally, your policies should be vetted by a legal professional, he said, but at the very least, you should run them by HR industry veterans to make sure there are no red flags.
"The laws governing the employer-employee relationship are continually being updated, and companies are well advised to regularly review and update their policies accordingly," Rotem said. "The policy should be consistently applied to all employees. The unfair application of an HR policy can wreak havoc on employee morale and create serious legal liability concerns for business owners."
Once you've checked your policies for compliance with state and federal laws, the next step is to ensure that everyone in your company is clear on the rules and their consequences. This means providing each employee with notice and ongoing access to any HR policies, as well as an opportunity to ask questions. Lastly, when dealing with thorny employee issues, employers can almost always benefit from applying common sense and compassion to the situation, Rotem said.
For more details on important labor laws to watch as an employer, check out this Business News Daily article.