November 2021 Volume 3

OPERATIONS & MANAGEMENT

3. Anti-Harassment Policy. Not only is this useful in terms of what is going on in the world, it is also legally significant. Per the Supreme Court of the United States, if you have a policy against harassment (including sexual harassment) which includes a complaint procedure, you can use this as a potential defense in a claim of co-worker harassment. Or, thinking about it another way, while you cannot always control what your employees do, you can impact your potential liability. To do so, you have to show: (a) you exercised reasonable care to prevent and promptly correct any harassing behavior, and (b) that the employee failed to take advantage of any preventative/corrective opportunities you provided. Practically, this means a policy against harassment which includes a way for employees to make complaints and for you to address them. 4. Vacation/PTO. This policy is not legally required but I think it is likely the most read policy in any handbook. Having a clear policy here can avoid questions and disputes. A vacation/PTO policy should include the amount of vacation/PTO, when it can be taken and in what time increments, what happens at the end of the year (or other measuring period), i.e., does it carry over, and what happens at termination. In some jurisdictions, you do not have to pay out accrued but unused PTO at termination if, and only if, you have a written policy that states as much. 5. Sick leave. This is a state specific concern, but I add it to my list as a placeholder/reminder to check what, if any, state (or local) requirements exist concerning sick leave. Even if you have a general PTO policy, it can be easier to carve out sick leave to address specific legal requirements in your particular jurisdiction. 6. FMLA. Employers who are subject to the FMLA (generally employers with 50 or more employees during 20 or more workweeks in the current or preceding year) are required to have a FMLA policy in their handbook or other written material about leave and benefits. Practically speaking, if you are a covered employer under the FMLA and you have a handbook, that handbook needs a FMLA policy. 7. Time Recording (for Non-Exempt Employees). There is much litigation (including class or collective actions) under the federal Fair Labor Standards Act (FLSA) and state wage and hour laws by non-exempt employees who claim not to have been paid for all hours worked. To address these potential claims, and just for general legal compliance and good record-keeping, I like to see a policy that specifically tells non-exempt employees that they must record all their time worked, and that they are not permitted to work off the clock. 8. How to Address Improper Wage Deductions/Safe Harbor (for Exempt Employees). Employees who are classified as “exempt” under FLSA must receive a regular salary regardless of hours worked. If improper deductions are made to that salary, the exemption can be challenged

(and like No. 7, this can lead to wage and hour litigation). A safe harbor policy prohibiting improper deductions and including a way for an employee to make a complaint in such a case can be used to help an employer preserve the exempt status. 9. No drug/alcohol use. This is one workplace rule that I like to make sure employers call out directly, so that if there is an issue, you have a clear rule in place. State laws regarding marijuana and/or medical marijuana are potentially complicating this issue, so it is something to review in your particular jurisdiction. I also like to make sure that the rule (a) covers non-working times during the workday (e.g., drinking at lunch is not OK), and (b) covers unauthorized use of otherwise legal drugs (e.g., an employee’s using prescription medicine that is not prescribed to that employee also is not OK). 10. Workplace Violence. This policy is a more recent addition tomy core list and is a reaction towhat I amseeing in the news concerning violence at work. Employers need employees to understand that they must partner in reporting any threat or perceived threat. And employees need to understand that any potentially violent interaction is a serious offense. My Top 10 is not meant to be the limit on what you should have. Of course, there are many other policies you may want to include, e.g., additional leave, benefits, workplace rules, employee discipline. But, regardless of the scope of your handbook, I like to see these Top 10 included. ■

Johanna Fabrizio Parker is a partner in Benesch's labor and employment group. Her practice involves representing and counseling management clients in a wide range of complex employment matters, including claims of discrimination, harassment, and retaliation brought under federal and state law, as well as wage and hour claims, and matters involving noncompetition agreements and trade secrets. She can be reached at jparker@beneschlaw.com.

FIA MAGAZINE | NOVEMBER 2021 39