2. www.laborlawyers.com ● Phone (602) 281-3400 Presented by: Shayna H. Balch Phone: (602) 281-3406 Email: sbalch@laborlawyers.com Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com Today’s webinar will begin shortly. We are waiting for attendees to log on. Arizona Lodging & Tourism Association

3. www.laborlawyers.com ● Phone (602) 281-3400 Presented by: Shayna H. Balch Phone: (602) 281-3406 Email: sbalch@laborlawyers.com Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com Today’s webinar will begin shortly. We are waiting for attendees to log on. Presented by: Matthew Simpson Phone: (404) 240-4152 Email: msimpson@laborlawyers.com Jansen Ellis Phone: (404) 240-4212 Email: jellis@laborlawyers.com New Year, New Rules! How to Create the Ideal Employee Handbook and Personnel Policies Presented by: Shayna H. Balch Phone: (602) 281-3406 Email: sbalch@laborlawyers.com Arizona Lodging & Tourism Association

4. www.laborlawyers.com ● Phone (602) 281-3400 Handbook Objectives Employee Based: Answer basic questions Describe benefits Identify expectations Outline acceptable behavior

5. www.laborlawyers.com ● Phone (602) 281-3400 Handbook Objectives Employer Based: Promote the Company Comply with the law Protect against litigation Improve unemployment experience rating

6. www.laborlawyers.com ● Phone (602) 281-3400 The Most Common Mistakes Not tailoring to your business Giving employees “rights” Trying to solve every problem Not following through Forgetting to update Making it a procedure manual for management

7. www.laborlawyers.com ● Phone (602) 281-3400 Handbook Essentials At-will EEO No Harassment Reasonable Accommodations Drug and Alcohol Open Door/Reporting Procedures Basic Work Rules Electronic Communications Work Schedule  Absenteeism/Tardiness  Overtime  Timekeeping Leave Policies  Jury Duty  Witness Duty  Voting Leave  FMLA Protecting Information and Property

8. www.laborlawyers.com ● Phone (602) 281-3400 Preamble Welcome to Practice Handbook is not an employment contract Handbook confers no contractual rights to Employee Supersedes all prior inconsistent handbooks or policies Reserve right to amend handbook

9. www.laborlawyers.com ● Phone (602) 281-3400 Thorough At-Will Language With or without cause With or without notice Supersedes any prior agreements Can only be changed in writing Signed by the Owner or President

10. www.laborlawyers.com ● Phone (602) 281-3400 Promises that Jeopardize At-Will Employment Termination only for “cause” or “good cause” Use of the word “permanent” We are a family We provide long-term job security We treat employees fairly

11. www.laborlawyers.com ● Phone (602) 281-3400 Some of The Most Important Policies

12. www.laborlawyers.com ● Phone (602) 281-3400 Equal Employment Opportunity All protected categories (list them) All employment actions Prohibit discrimination, harassment & retaliation Explain consequences of violations

13. www.laborlawyers.com ● Phone (602) 281-3400 Anti-Harassment Include a clearly defined complaint procedure  Report to high-ranking managers  Report to male or female  Include additional layers of reporting

14. www.laborlawyers.com ● Phone (602) 281-3400 Anti-Harassment (Continued) Not just sex Complaint procedure Define prohibited acts broadly, but give examples Comments, objects, contact

15. www.laborlawyers.com ● Phone (602) 281-3400 Anti-Harassment (Continued) No retaliation Limited confidentiality in investigations Non-Employees covered

16. www.laborlawyers.com ● Phone (602) 281-3400 Problem Solving Procedure List chain of command Include a “bypass” procedure Must be effective!

17. www.laborlawyers.com ● Phone (602) 281-3400 Absenteeism & Tardiness Notification requirements Consequences Automatic termination / job abandonment

18. www.laborlawyers.com ● Phone (602) 281-3400 Leave Policies Non-Medical Leaves –Bereavement –Civic Responsibilities Jury or witness duty Voting –Eligibility Duration –Military –Personal –Sick

19. www.laborlawyers.com ● Phone (602) 281-3400 Medical Leave (FMLA) Covered employees Employee eligibility Eligible employees get 12 weeks of: –Job-protected –Benefits continued –Unpaid leave

20. www.laborlawyers.com ● Phone (602) 281-3400 Medical Leave (non-FMLA) Required, even if not covered by FMLA May be a reasonable accommodation Explains basic terms of leave –Eligibility requirements –Reinstatement rights

21. www.laborlawyers.com ● Phone (602) 281-3400 Reasonable Accommodations (EEOC Guidance & Enforcement)

22. www.laborlawyers.com ● Phone (602) 281-3400 Recent EEOC Settlements Inflexible Leave Policies $20 million –no fault attendance policy $6.2 million –inflexible 12-month leave policy $4.85 million −inflexible 12-week leave policy $3.2 million –return to “full duty with no restrictions” policy $1.35 million –inflexible 12-week leave policy

23. www.laborlawyers.com ● Phone (602) 281-3400 Accommodation 101 “Interactive process” requires affirmative steps: does the employee require any “reasonable accommodation” to –perform the essential functions of his or her job? –enjoy the benefits and privileges of employment? “Reasonable Accommodation” may include: –unpaid leave –modified duty/reduced work schedule –telecommuting –reassignment to a vacant position

24. www.laborlawyers.com ● Phone (602) 281-3400 Inflexible Leave Policies Automatic termination upon expiration of leave = trouble “No fault” absence policies = trouble No individualized assessment No opportunity to determine if extended leave is a reasonable accommodation 100% return to work policies = trouble Need to consider modified duty and/or reduced work schedules

25. www.laborlawyers.com ● Phone (602) 281-3400 Types of Accommodation Making facilities accessible Job restructuring Modified work schedules Work-at-home arrangements Transfer or reassignment Leaves of absence Acquiring/modifying equipment/devices Adjusting/modifying exams, policies, training Providing qualified readers or interpreters

26. www.laborlawyers.com ● Phone (602) 281-3400 Leave: Best Practices Revise inflexible leave policies Eliminate reference to “100% recovered” or “full duty” Train supervisors to recognize accommodation requests Engage in a dialogue with each employee who requests leave Ask when the employee anticipates returning to work

27. www.laborlawyers.com ● Phone (602) 281-3400 NLRB Enforcement NLRB has looked closely at employee handbooks Applies in union and non- union companies Unlawful policies discourage union participation

28. www.laborlawyers.com ● Phone (602) 281-3400 Social Media “statements posted electronically…that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Employee Handbook, may be subject to discipline, up to and including termination of employment.” LawfulUnlawful

29. www.laborlawyers.com ● Phone (602) 281-3400 Work Rules “be courteous, polite and friendly” LawfulUnlawful

30. www.laborlawyers.com ● Phone (602) 281-3400 Work Rules “no one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” LawfulUnlawful

31. www.laborlawyers.com ● Phone (602) 281-3400 Work Rules “off-duty employees are prohibited from entering the workplace except to conduct employer-related business” LawfulUnlawful

32. www.laborlawyers.com ● Phone (602) 281-3400 Work Rules “off-duty employees are prohibited from entering the workplace, except to attend employer-sponsored events” LawfulUnlawful

33. www.laborlawyers.com ● Phone (602) 281-3400 Work Rules “employees are prohibited from walking off the job or willfully restricting production” LawfulUnlawful

34. www.laborlawyers.com ● Phone (602) 281-3400 At-Will Policies “the at-will relationship cannot be amended, modified or altered in any way.” LawfulUnlawful

35. www.laborlawyers.com ● Phone (602) 281-3400 At-Will Policies “only the CEO or his designee has the authority to enter into an agreement that is contrary to the ‘employment at will’ relationship.” LawfulUnlawful

36. www.laborlawyers.com ● Phone (602) 281-3400 Confidentiality In Workplace Investigations “employees who disclose their participation in this internal investigation will be subject to immediate termination” LawfulUnlawful

37. www.laborlawyers.com ● Phone (602) 281-3400 Social Media Policy Employers must weigh the risks of inappropriate on-line activity against the potential harm to employee relations if the company’s efforts are perceived as excessively intruding into an employees’ private lives Employers should develop a specific policy governing usage of social networking sites and train employees on the policy and appropriate use of sites

38. www.laborlawyers.com ● Phone (602) 281-3400 Social Media Policy Employer concerns:  Upholding the company’s reputation in the community;  Protecting confidentiality and trade secrets;  Enforcing existing employment policies

39. www.laborlawyers.com ● Phone (602) 281-3400 Social Media Policy NLRB concerns:  Prohibitions on protected employee communications relating to terms and conditions of employment;  Prohibitions on criticizing the company; and  Requirements that employee posts be “completely accurate”

40. www.laborlawyers.com ● Phone (602) 281-3400 Social Media Policy – What Can I Do? Remind employees that on-line activities reflect the company and its service to its customers and the greater community Require that all information posted or published by an employee complies with existing lawful employment policies, including use of confidential and proprietary information Prohibit employees from defaming, harassing, or threatening co- workers Remind employees that on-line activities are often public and can be accessed by others

41. www.laborlawyers.com ● Phone (602) 281-3400 NLRB Enforcement Purple Communications decision in December 2014 Employers cannot completely limit employee use of company e-mail systems on non-working time Employees must be able to use Company e-mail for protected concerted activities on non-working time

42. www.laborlawyers.com ● Phone (602) 281-3400 Tips for a Social Media Policy Be Specific:  Target specific behaviors that violate the law or company policies  Flawed policy: Costco’s policy barring statements that harm the Company’s reputation – employees could read it as a ban on protesting the treatment of employees  Acceptable policy: Wal-Mart’s policy limited its prohibition to comments that are malicious or obscene

43. www.laborlawyers.com ● Phone (602) 281-3400 Tips for a Social Media Policy Give Examples:  Broad categories of prohibited or required conduct will draw scrutiny  Give examples not related to terms and conditions of employment but related to business products, trade secrets, guest information, etc. Stay Current:  Odds are, unless you’ve drafted a policy in the last few months, it’s not current

44. www.laborlawyers.com ● Phone (602) 281-3400 Drugs and Alcohol Arizona is one of 23 states that allows the use of marijuana for certain medical purposes. In most states Employers remain free to implement and utilize drug-free workplace programs and policies in spite of medical use of marijuana.

45. www.laborlawyers.com ● Phone (602) 281-3400 Arizona Medical Marijuana Act A. R. S. § 36-2813(B) B.Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: 1.The person’s status as a cardholder. 2.A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

46. www.laborlawyers.com ● Phone (602) 281-3400 Legislative “Fix” (HB 2541) –Expands the definition of “good faith” –Defines “impairment” –Allows employers to exclude an employee from “safety- sensitive positions” –Defines “current use of drugs” –Permits employers to use a verification system to verify cardholder status –Expands the safe harbor provision contained in Arizona’s drug testing statute

47. www.laborlawyers.com ● Phone (602) 281-3400 Expanded Definition of “Good Faith” No cause of action may be established against an employer for actions based on the employer’s “good faith” belief that an employee had used or possessed any drug or had an “impairment” while working, while on the employer’s premises, or during hours of employment

48. www.laborlawyers.com ● Phone (602) 281-3400 Cigarettes Smoking is one of the great controversies employers face Smoke break –Employee has no protected right to take a break due to nicotine addiction

49. www.laborlawyers.com ● Phone (602) 281-3400 Cigarettes Smoke-Free Arizona Act No smoking in all public places and places of employment –(20 feet of entrances, windows, ventilation systems) Exceptions –Private residences –Hotel rooms designated as Smoking –Tobacco stores –Veteran and fraternal clubs –Religious exemption –Outdoor patios (20 foot rule) –Theatrical performances

50. www.laborlawyers.com ● Phone (602) 281-3400 E-Cigarettes Currently no state law in Arizona re: e-cigarettes. Employers are free to create their own policies based on their beliefs as to whether or not e-cigarettes should be allowed in the workplace.

51. www.laborlawyers.com ● Phone (602) 281-3400 Conflict of Interest Moonlighting that interferes with employment Engaging in competitive business Financial interest in competing business Notify Company of potential conflicts

52. www.laborlawyers.com ● Phone (602) 281-3400 Protection of Company’s Valuable Information Business Records Confidential Information Electronic Communication

53. www.laborlawyers.com ● Phone (602) 281-3400 Business Records The Company’s property Always subject to review by management

54. www.laborlawyers.com ● Phone (602) 281-3400 Confidential Information Identify it Take actions to protect it Tell employees of consequences of disclosure Retrieve it before employees leave Remind departing employees of their obligations

55. www.laborlawyers.com ● Phone (602) 281-3400 Electronic Communications Define Right of access by Company –Computers are monitored Property rights apply –Computers & other electronic equipment are Company property Acceptable and unacceptable uses

56. www.laborlawyers.com ● Phone (602) 281-3400 Protecting People and Property Inspection of Work Area No Weapons Safety Unauthorized Recording (Voice/Picture/Video) Use of Company Property Workplace Security

57. www.laborlawyers.com ● Phone (602) 281-3400 Workplace Violence Avoiding negligent supervision/retention Zero tolerance for violence from any source Requirement to immediate report of threats Statement that all threats are to be taken seriously Even off-premises conduct can be covered Involve law enforcement if necessary

58. www.laborlawyers.com ● Phone (602) 281-3400 The Ball’s In Your Court Benefits Employee Pay PTO Work Schedule The Company’s Image Additional policies

59. www.laborlawyers.com ● Phone (602) 281-3400 Company Benefits Various benefits –401(k) –Insurance No details of benefits Plan documents control –COBRA

60. www.laborlawyers.com ● Phone (602) 281-3400 Company Benefits (Continued) Employee’s pay –Payday –Direct deposit –Deductions –Release of pay checks

61. www.laborlawyers.com ● Phone (602) 281-3400 PTO Paid Holidays –Eligibility –Unapproved absences before or after Holiday –Holiday falls on weekend or during employee’s vacation Paid Vacation Accrual Issues –Probationary employees –Use it or lose it –Rollover –Payment at termination

62. www.laborlawyers.com ● Phone (602) 281-3400 Basic Work Rules Do not promise progressive discipline Use broad, general categories May result in discipline “up to and including immediate termination”

63. www.laborlawyers.com ● Phone (602) 281-3400 The Company’s Image Personal appearance –Dress code –Body Piercing –Tattoos –Personal Hygiene –Work area appearance

64. www.laborlawyers.com ● Phone (602) 281-3400 Forget About It! Pre-employment Issues that rarely arise Issues that you don’t want to raise (i.e., access to personnel files, exempt status)

65. www.laborlawyers.com ● Phone (602) 281-3400 Implementation Provide written notice announcing re-issuance of the handbook Conduct meetings with employees to cover the relevant changes  Keep track of attendance at meetings (ie, sign-in sheets, etc.) Re-issue employee handbook  Allow employees to keep a copy of the revised handbook  Have employees sign Acknowledgment Form  Photocopy or retain copies of signed documents

66. www.laborlawyers.com ● Phone (602) 281-3400 Implementation Even the best handbook fails if you can’t “prove” your employees received it Obtain a signed acknowledgment of receipt for the handbook and all revisions Keep the signed acknowledgment in personnel file for at least one year after termination

67. www.laborlawyers.com ● Phone (602) 281-3400 Future Updates When the law changes When your policies change Annually When you’ve run out of copies

68. www.laborlawyers.com ● Phone (602) 281-3400 Presented by: Shayna H. Balch Phone: (602) 281-3406 Email: sbalch@laborlawyers.com Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com Final Questions?

69. www.laborlawyers.com ● Phone (602) 281-3400 Presented by: Shayna H. Balch Phone: (602) 281-3406 Email: sbalch@laborlawyers.com Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com Thank You