By: RUN ADP
It’s a best practice to review policies, posters, and forms periodically to ensure that they adhere to applicable laws and evolving company practices. Since the New Year typically brings a host of new laws, now is a good time to conduct this review. To help you get 2018 started on the right foot, here are some tips for conducting a successful review.
#1: Sexual Harassment Policies
Some states, such as Massachusetts and Maine, require employers to have a policy against sexual harassment and to distribute the policy to employees annually. Other states have specific policy requirements as well. In the absence of a state requirement, it is a best practice to have a comprehensive policy that aims to effectively prevent and respond to sexual harassment, especially in light of the wave of complaints that received national attention in 2017. In general, policies should:
Clearly state that sexual (and other forms of) harassment and retaliation are prohibited.
Define sexual (and other forms of) harassment and include examples of prohibited conduct.
State that the policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other third parties.
Address consequences for violating the policy.
Set forth a clear procedure for employee complaints and offer employees multiple avenues through which they can report potential violations.
Encourage employees to report inappropriate conduct, without fear of reprisal, whether they are a victim or a witness.
Assure employees that complaints will be taken seriously and the company will conduct a prompt, impartial, and thorough investigation.
Indicate the company will maintain confidentiality as much as possible.
Encourage employees to respond to questions or to otherwise participate in investigations regarding alleged harassment.
State that the company will take immediate and proportionate corrective action if it determines that a violation of the policy has occurred.
Keep in mind that your state law may require certain information in your policy, such as how employees may file complaints with the state.
#2: EEO Policies
Federal, state, and local laws prohibit employers from discriminating against applicants and employees on the basis of certain protected characteristics, such as age, race, sex, and religion, among others. The list of protected characteristics continues to change as states and local jurisdictions enact new laws and government agencies and courts take new positions on existing laws. For example, several jurisdictions have enacted laws that expressly prohibit employers from discriminating against applicants and employees on the basis of their sexual orientation or gender identity. While federal law doesn’t expressly prohibit sexual-orientation or gender-identity discrimination, the Equal Employment Opportunity Commission (EEOC) has taken the position that protections on the basis of sex extend to sexual orientation and gender identity.
When reviewing your equal employment opportunity policy, consider whether it clearly:
Includes all the characteristics protected under applicable federal, state, and local laws.
Prohibits retaliation against employees for filing a complaint or participating in an investigation.
Stresses that all employment decisions are based upon one’s qualifications and capabilities to perform the essential functions of a particular job, without regard to protected characteristics.
States that the policy governs all aspects of employment, including but not limited to hiring, selection, training, benefits, promotions, compensation, discipline, and termination.
Urges the reporting of all instances of discrimination.
States that appropriate disciplinary action, up to and including immediate termination, will be taken against any employee who violates the policy.
EEO laws also typically require employers to post a notice about employees’ rights.
#3: Leave Policies
States and local jurisdictions continue to pass new laws that require wage replacement or require employers to give employees time off for covered absences. Recently, paid family leave and paid sick leave laws have been two of the most commonly enacted leave requirements. Some leave laws also require employers to have written policies outlining the leave entitlement. Even if your state doesn’t require a written policy, or you choose to provide leave voluntarily, it is a best practice to have a clear policy outlining employee and employer rights and responsibilities related to leave.
Your leave policies must be at least as generous as applicable federal, state, or local laws and should address:
Who is eligible (include all requirements for eligibility, such as length of service and status as a full-time or part-time employee).
How much leave is available and how it accrues (if applicable) and whether and how much leave can be carried over. Note: Leave laws often require employers to document this information and/or include sick leave accruals and balances on employee pay statements.
Whether the leave is paid or unpaid.
The types of absences covered by the policy.
How employees can request leave.
Employee notice about the need for leave (many leave laws restrict the amount of notice employers may require).
Benefits continuation (leave laws typically require employers to continue health and other benefits while the employee is on leave).
Documentation (many leave laws have rules on the documentation employers may require to confirm the absence is covered).
Job reinstatement (under most leave laws, employees must be reinstated to the position they held prior to the start of leave or a comparable position).
How the policy interacts with other leave policies.
Anti-retaliation statement (many leave laws prohibit any adverse action be taken against an employee for taking leave or inquiring about their rights under the law).
Leave laws also typically require employers to provide and/or post a notice about employees’ rights.
#4: Pregnancy Accommodation Policies
Many states have enacted laws requiring employers to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions. A reasonable accommodation is generally a change or modification made to the structure or manner of an employee’s position allowing them to perform the essential functions of the role, absent an undue hardship on the business. If you’re subject to a pregnancy accommodation law, you may be required to have a written policy (although it is a best practice even if it isn’t required). Make sure the policy complies with your state law, including the types of accommodations that are available to eligible employees.
These laws may also require employers to provide and/or post a notice about employees’ rights.
#5: Minimum Wage Posters
Eighteen states and many local jurisdictions have new minimum wages that became effective on December 31, 2017 or January 1, 2018. Some additional jurisdictions will see increases at other times throughout 2018. Most jurisdictions require employers to post a minimum wage notice in the workplace. If you’re required to post a notice, make sure you’ve posted the most up-to-date version.
#6: W-4 Forms
A major federal tax law enacted in December 2017 includes changes to exemptions, deductions, and tax brackets. These changes mean that many employees may need to complete a new W-4 Form for 2018. However, until the IRS releases a revised form, employers should continue to use the 2017 version. Note that some employees may ask questions about the effect of the legislation, or may submit a revised W-4 to modify their withholding allowances for 2018. Employers should be prepared to accept revised Forms W-4, but may wish to advise employees that a revised Form W-4 will be issued later in 2018, and that the employee may need to complete a revised form at that time.
#7: Application Forms
Several states and local jurisdictions have enacted laws limiting the information employers may seek on application forms. For example, four states and four local jurisdictions have laws that restrict employers from making inquiries into an applicant’s pay history during the hiring process. Eleven states and over a dozen local jurisdictions have enacted laws prohibiting employers from asking about criminal history on application forms (some make employers wait until after a job offer has been extended). Make sure your application forms avoid any questions that are prohibited under applicable laws.
Note: Even if your jurisdiction doesn’t expressly bar questions about criminal history on application forms, the EEOC recommends that employers avoid such inquires. If and when employers do ask about convictions later in the selection process, the inquiries should be job related and consistent with business necessity.
Make sure your policies, posters, and forms comply with federal, state, and local requirements and are updated as laws or company policies change. When you update your policies, be sure to include a revision date on each version and make clear that the current version supersedes all previous versions. It’s also a best practice to obtain signed acknowledgments from employees whenever you issue new or updated policies.