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Employment Policies and Training: Why They Make Sense Now

Kelly Ann Bird

What has your company spent time and money on lately? Certainly budgets are stretched thin these days, no matter what the size of your business. And every company (just like every person) has its own list of priorities in terms of spending, time, and allocation of resources. But in all likelihood, one of your primary investments (and biggest budget items) is your employees. Your business may protect and nurture its workforce in a variety of ways, including through promotional opportunities and competitive compensation, benefits, and a host of perquisites. Another way that companies invest in their workplaces and employees is by creating and adopting workplace policies and offering training opportunities for employees so that, in addition to educating employees on job-related skills and subjects, they are also teaching employees about company expectations.

Wouldn’t it benefit both businesses and employees to ensure that all have a common understanding of what conduct is expected of each individual in the workplace and what the repercussions of noncompliance are? Much as attendance and productivity are “basics” that have been subject to renewed focus and enforcement because they have been proven to impact business, implementing and enforcing basic internal policies and educating employees about these requirements will also enhance the workplace, improve production and performance, and protect businesses and employees.

Policies – Why and What Should I Worry About?

If your company has an employee manual or has established policies and procedures related to conduct, business assets and equipment, and legal responsibilities of employees and employers, you are off to a good start. But when was the last time anyone updated those policies? Or for that matter when was the last time anyone even looked at them except when attempting to resolve a problem related to an apparent violation? It is not expensive or time consuming to get all of your policies in one place and dust them off, and you do not need an outside consultant or employment attorney to take this initial step. Nor does it take significant resources to make a list of policies (even starting with the ones I identify below) that might benefit your workplace. Think about how your business operates, what resources are available to your employees, and what kinds of problems your company and its employees have encountered in recent years. Whether you have policies in place or not, this type of analysis will help you determine where to focus your efforts.

Once you have an idea of what you have, do not have, and might need, you should think about how the federal and state agencies, the courts, and the legislation are impacting your expectations of your employees and the types of restrictions that you can impose in order to best protect and support your business and workforce. For example, every time I open my morning email I read another update about the Equal Employment Opportunity Commission (“EEOC”) or the National Labor Relations Board (“NLRB”) introducing programs or promulgating new guidance that impacts my employer clients. This part of the process is where you may or may not need a bit of outside help. As a starting place, my colleagues and I were recently brainstorming and identified a short list of policies our clients can no longer avoid or ignore based on the past couple of years of legal activity. Those policies and, in brief, the impetus for focusing on them are listed here:

  • Hiring.
    The EEOC recently issued a draft Strategic Enforcement Plan that will target not only intentional discrimination in hiring but also facially neutral practices that adversely impact protected applicant groups. For example, if your company’s hiring policies require applicants to undergo certain screening tests, these may be problematic. Similarly, last spring the EEOC released Enforcement Guidance on the use of arrest and conviction records. Employers are now cautioned against using these records in decisions and even discouraged from asking about criminal records on applications.
     
  • Electronic Equipment.
    The available technology has changed so rapidly and become both universally accessible and utilized. Many companies, even those that revised their electronic equipment policies as recently as two or three years ago, should revisit these. Consider what you are offering your employees, how they are communicating internally and externally, and whether it is clear from your policies that employees have no expectation of privacy (no matter what the medium or where or how accessed, barring privileged communications), that they can be disciplined for a communication they might deem personal, and that no matter how significantly or quickly technology develops, your policy covers it. 
     
  • Social Media.
    Obviously, more employees are using social media for both business and personal uses. But your interest in protecting your businesses has not diminished. However, the NLRB has repeatedly indicated and confirmed as recently as September 2012 that it believes that the National Labor Relations Act is violated - even when non-union employers are involved - when employers implement policies restricting communications (regardless of the medium) that fall within the category of protected, concerted activity. The NLRB’s position with regard to employees marring a company’s reputation is the same - any policy that can reasonably be interpreted to chill the exercise of the right to engage in protected, concerted activity is likely going to be challenged. This includes conduct such as employees discussing certain aspects of the workplace, your company’s business, or other employees on personal websites or media like Face Book. In addition, ownership of an employee’s Twitter followers or Linked In contacts are now becoming contentious. And, if you have a policy already, does it take future platforms into consideration? These issues will certainly continue to grow more complex, but should not be ignored.
     
  • Confidentiality.
    As mentioned above, and in line with its position concerning reputational damage, the NLRB focus on employer policies concerning communications impacts many of our previously implemented policies on confidentiality. The NLRB’s most recent decision found unlawful policies that limit a variety of communications, whether internal (for example, in the context of an investigation) or external. Thus, policies that restrict employees from discussing compensation, workplace environment, discipline and the like are now perceived as interfering with protected activity. And, again, this applies to non-union workforces as well as union workers. But companies need to protect their confidential information, and technology has provided multiple new avenues into corporate espionage. Your confidentiality policy (or references to same in broader policy) is now required to walk a fine line.
     
  • Reasonable Accommodations.
    Both the not-so-recent amendments to the Americans with Disabilities Act and the recent and persistent activity of the EEOC clarify that more employees will be seeking and eligible for workplace accommodations than ever before. It would be worthwhile to give those employees and their managers some information about how to initiate such a request.
     
  • Bullying.
    Bullying has made headlines in the educational environment, and numerous states have proposed “anti-bullying” in the workplace legislation. Even without state or federal laws prohibiting bullying, with issues like discrimination and harassment a common subject of policies and training, more employees are focusing on the workplace atmosphere, including bullying. Indeed, it has been my experience that even where investigations into allegations of harassment conclude that no unlawful behavior has occurred, often the complained-of-conduct involves bullying. After considering the time and resources lost in terms of productivity and investigations of complaints, workplace policies that bar bullying seem like an inexpensive and easy remedy.

So now you have a short list. Let’s assume from here you have the time and resources to create workable, legally compliant new policies or to simply revise what you have already invested in. What’s next?

Training – Is the Extra Step Necessary?

Once policies are created or revised, generally a company does a “roll out.” Some companies still circulate hard copies, some transmit via email, some use an intranet. And many require acknowledgments of reading and understanding, whether by execution and return of a signature page or electronic certification. But how many of your employees actually take the time to read these policies? And how many of your front-line managers or supervisory employees have an understanding of how to implement them? So many employees I depose or prepare for deposition tell me that they know there is a policy about a specific topic, but they do not really know what it says and - worse - that even though they acknowledged it, they honestly did not read it. In that case, why bother having a policy? To be blunt, how can we expect employees to abide by workplace policies unless we ensure that they understand them?

To make your effort in establishing clear and “user-friendly” policies worthwhile, employers can and should train their employees about company policies. But training programs accomplish more than simply advising employees of what policies exist, what is permitted and prohibited and the repercussions for violations of company policies and/or unlawful conduct. Training employees can also help improve conduct - quite simply, employees who understand policies and have been provided with concrete and clear guidance are more likely to police themselves and their co-workers. Training should increase consistency in application of policies and decision making concerning employees. Training is also a cost-effective way to reduce costs associated with employee complaints and litigation; employees who feel that their company policies make sense and have “teeth” (which is conveyed not only by training but also by enforcement, which is in turn assisted by the understanding that comes with training) will use the internal processes. Training can also help companies increase productivity - by diminishing unproductive and improper conduct and minimizing the time required to respond to that conduct - and employee retention - by reducing the types of conduct and violations that cause voluntary and involuntary separations - thus positively impacting revenues.

By way of example, anti-harassment and discrimination training, can improve morale, reduce distracting and unlawful conduct in the workplace, and provide an affirmative defense to claims. Training directed to human resources and supervisory employees on topics like leaves and accommodation of disabilities can assist them in their understanding of and compliance with federal and state laws. In addition, businesses in which employees utilize any form of company-provided equipment or services, such as telephones, e-mail, and the internet, should also train employees on the proper and prohibited uses for such equipment. Employees who understand that company equipment is for restricted personal use and that they will be monitored may be more likely to devote company time and resources to business purposes, reducing non-business distractions to co-workers and the overload of company systems with extraneous matters. Training in this context also provides an opportunity for employees and employers to engage in a dialogue about the realities of modern technology and employee uses of same.

An effective employee training program does not have to be expensive. It can be as simple as a human resources employee having small roundtable discussions or as formal as a presentation and interactive discussion led by a consultant or outside counsel. But however it is done, it should be implemented company-wide, should be provided to all new employees and as frequently as either the policies are revised or at regular intervals, and should be provided by persons who are familiar with the policies themselves and also have an understanding of the laws and regulations applicable to workplace conduct and employer and employee obligations. Interactive training, using your company policies, with hypothetical scenarios for illustration, helps employees understand how the policies and laws impact them. The goal is to make your company’s policies matter. When properly conducted in a format that imparts practical, relevant information to employees, employment policies training will have impact and result in understanding and compliance.

To recap, your company has already invested in its employees. Isn’t it worth taking a few extra steps:

  1. Collect your policies, identify those you do not have and might want
  2. Create and/or revise the most important policies first
  3. Explain the policies to your employees in a meaningful way

Your business and your employees are worth this small investment.

 


Kelly Ann Bird is Director of the Employment & Labor Law Department at Gibbons P.C. She helps employers manage an increasingly challenging workplace. She handles investigations of workplace complaints, advises on conducting investigations, and provides counseling services and workplace training to employers on every aspect of workplace management. Ms. Bird also litigates employment cases on behalf of management, defending discrimination, harassment, whistleblower, wrongful discharge, tort, and contract claims. She can be reached at (973) 596-4881 or kbird@gibbonslaw.com.