A P P E N D I X

Some Common Workplace Policies

This book has discussed myriad policies and forms that you should be using in your business’s management of its employees. For example, Chapters 4 and 5 discuss the importance of a harassment policy. If you need a harassment policy for your workplace, you can Google the phrase “workplace harassment policy” and in a matter of seconds locate hundreds, if not thousands, of form harassment policies.

Forms, however, are just that. They are models for you to consider and shape to your particular needs. Pulling forms off the Internet, without any additional consideration, is dangerous. You do not know when that form was last reviewed or updated. You do not know under which state’s law it complies (if any at all). You do not know when an attorney last vetted that form for legal compliance (if ever). In short, if you are using Internet policies, you are acting at your own peril. There is nothing wrong with using the Internet as a starting point. But please have your labor and employment counsel review the form or policy before you roll it out in your workplace. A quick 15-minute phone call for your lawyer to vet your policy before you implement it will prove to be a whole lot less expensive that the call to your lawyer after an employee challenges an illegal policy in a lawsuit.

With that disclaimer out of the way, consider the following examples of some common workplace forms and policies. And, if you haven’t gotten the point already, please do not rely on these documents as legal advice, and have your own lawyer approve their use for your particular business and its needs.

Social Media Policy

At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and coworkers around the world. The use of social media, however, also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all associates who work for [Employer].

GUIDELINES

In the rapidly expanding world of electronic communication, social media can mean many things.

Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

__________

Know and Follow the Rules

Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Confidentiality Policy, and the [Employer] Discrimination & Harassment Policy, and ensure your postings are consistent with these policies.

Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence, insubordinate, or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be Respectful

[Employer] recognizes the benefits associated with electronic communications via social media. All employees are responsible for communicating with appropriate business decorum. Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your coworkers or by utilizing our open door policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating; that disparage customers, members, associates or suppliers; or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy. Malicious statements include those made with the intent or desire to harm someone or those that done with an evil intent.

Be Honest and Accurate

Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered.

Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post Only Appropriate and Respectful Content

• Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
• Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate our Insider Trading Policy.
• Do not create a link from your blog, website, or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
• Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or related to subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using Social Media at Work

Reasonable personal use of social media sites done so during work time or on equipment we provide is permitted. Excessive use, or use that inhibits, hinders, or adversely affects your job performance will be treated as any other performance-related problem.

Do not use [Employer] email addresses to register on social networks, blogs or other online tools used for personal use, unless it is work-related as authorized by your manager.

Employees are prohibited from providing recommendations or otherwise commenting on the job performance (positively or negatively) of a coworker, subordinate, or any other employee of the [Employer], past or present. All references and recommendations must be handled through the appropriate channels and consistent with the [Employer]’s policy on job references; all appraisals on an employee’s job performance must be handled via [Employer]’s formal performance review process, consistent with our performance review policy.

Ownership of Social Media Accounts

If a social media profile links to an employee’s [Employer]-provided email address, the [Employer] owns that social media profile, and at the end of that employee’s tenure with the company, the employee must provide the login and password information to the human resources department upon leaving the [Employer]’s employment. If, on the other hand, an employee’s account is mixed purpose (business and personal) or a business-only account linked to the employee’s personal email, at the conclusion of an employee’s tenure with the company, he or she must leave with the human resources department a list of all friends, followers, and connections on Facebook, twitter, LinkedIn, and any other social networks in use. Additionally, all departing employees must provide their social media contacts with a redirect option, including a statement that the employee is no longer affiliated with the company, and the name, social network, and user name of the new person to follow.

Retaliation Is Prohibited

[Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Photographs and Likeness

Periodically, [Employer] may obtain photographs, videos, or other likenesses of its employees at [Employer]-related events, such as outings, holiday parties, and charitable events. If an employee does not want his or her photograph, video, or other likeness recorded at such an event, posted on our [Employer] website or any social networking site (such as the [Employer]’s Facebook page or twitter feed), the employee must inform the human resources department in writing.

Media Contacts

Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.

Effect of Certain Laws

Nothing in this policy is intended to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.

For More Information

As with all policies, the interpretation of this Social Media Policy is within the sole discretion of management, and the [Employer] reserves the right to alter, amend, modify, revoke, suspend or terminate all or any part of this Social Media Policy, at any time, in its sole discretion, with or without notice. If you have questions or need further guidance, please contact your HR representative.

Bring Your Own Device Policy

[Employer] would like to provide greater mobile device choice to its employees and simultaneously reduce end-user mobile device complexity. Providing secured company email/calendar/contact data on employee personal smart-phones allows these employees to use their device of choice, and it eliminates the need to carry multiple devices. Thus, [Employer] is implementing a “Bring Your Own Device” (BYOD) program to permit [Employer] personnel to use personally owned smart phones and tablets for business purposes.

This document applies to employees who wish to receive company email/calendar/contact data on a personal mobile device and provides policies, standards, and rules of behavior for the use of personally-owned smart phones and/or tablets by [Employer]’s employees (referred to as users) to access [Employer] network resources. [Employer] grants access to and continued use of network services on the express condition that each user reads, signs, respects, and follows the [Employer]’s policies concerning the use of these devices and services.

Current BYOD Approved for Use

• iOS iPhones & iPads (iOS 4 or higher)
• Android Smart Phones & Tablets (version 2.2 or higher)
• Blackberry Smart Phones & Playbook

Expectation of Privacy

[Employer] will respect the privacy of your personal device and will only request access to the device by technicians to implement security controls, as outlined below, or to respond to legitimate discovery requests arising out of administrative, civil, or criminal proceedings (applicable only if user downloads [Employer] email/attachments/ documents to their personal device). This expectation of privacy differs from [Employer]’s policy for [Employer]-provided equipment/services where [Employer] employees do not have the right, nor should they have the expectation, of privacy while using [Employer] equipment or services. While access to the personal device itself is restricted, [Employer]’s policy regarding the use/access of [Employer] email and other systems or services remains in effect. If there are questions related to compliance with the below security requirements, the user may opt to drop out of the BYOD program.

Information Technology Responsibilities

• Information Technology (IT) is responsible for configuring and supporting the user’s device to receive and access company email, calendar, and contact data.
• IT is responsible for smartphone system removal and for performing a “remote wipe” of [Employer] email, calendar, and contact data from a user’s lost or stolen smartphone. IT may perform a full device wipe at the user’s request.
• IT is responsible for smartphone system removal and performing a “remote wipe” of company email, calendar, and contact data from user’s smartphone upon termination of employment with [Employer].

Employee Responsibilities and Requirements for all BYODs Accessing [Employer] Network Services

• User is responsible for using company email on his or her personal smartphone within the same constraints as on a company-owned device.
• User is responsible for maintaining and paying the monthly/annual fee to the telephone mobile carrier. All mobile telephone charges that he or she incurs are his or her responsibility, regardless whether such charges are work-related or for personal use. This includes, but is not limited to, charges resulting from texts, data plan surcharges, calls, navigation, or application uses or from early termination fees.
• User is responsible for all smartphone support requirements, including the cost of repairs or replacement. [Employer] is responsible, however, for configuring and supporting the smartphone to receive and access company email, calendar, and contact data.
• User will not download or transfer sensitive business data to their personal devices. Sensitive business data is defined as documents or data whose loss, misuse, or unauthorized access can adversely affect the privacy or welfare of an individual (personally identifiable information), the outcome of a charge/complaint/case, proprietary or confidential information, or [Employer] financial operations.
• Rooted Android devices and jailbroken Apple iOS devices pose a risk to company data contained within the secure communications app. Therefore, [Employer] will disable or remove the app and remove company data on devices determined to be rooted or jailbroken. Moreover any attempt to root or jailbreak a device will disqualify the user from any further and future participation in [Employer]’s BYOD program.
• User agrees that because of the business use of the device, User will not share the device with other individuals or family members.
• User agrees to delete any sensitive business files that may be inadvertently downloaded and stored on the device through the process of viewing email attachments. [Employer] will provide instructions for identifying and removing these unintended file downloads. Follow the premise, “When in Doubt, Delete it Out.”
• User agrees that he or she will password-protect the device via the device’s operating system’s available password protection protocols.
• User agrees that if he or she loses a device covered by this policy, or if a device covered by this policy is stolen, he or she will immediately notify [Employer]’s IT department. Do not first notify your mobile carrier, as it will limit [Employer]’s ability remove [Employer] data and information from the device.
• User’s device will be remote wiped if: (i) you lose the device; (ii) your employment with [Employer] ends; or (iii) IT detects a data or policy breach or virus.

User Acknowledgment and Agreement

It is [Employer]’s right to restrict or rescind computing privileges or take other administrative or legal action due to failure to comply with the BYOD Policy. Violation of these rules may be grounds for disciplinary action up to and including termination.

I acknowledge, understand and will comply with the above referenced security policy and rules of behavior, as applicable to my BYOD usage of [Employer] services. I understand that the addition of [Employer]-provided third-party software may decrease the available memory or storage on my personal device and that [Employer] is not responsible for any loss or theft of, damage to, or failure in the device that may result from use of third-party software and use of the device in this program. I understand that contacting vendors for trouble-shooting and support of third-party software is my responsibility, with limited configuration support and advice provided by [Employer]. I understand that business use may result in increases to my personal monthly service plan costs. I further understand that [Employer] reimbursement of any business-related data/voice plan usage of my personal device is not provided.

Should I later decide to discontinue my participation in the BYOD Program, I will allow [Employer] to remove and disable any [Employer]-provided third-party software and services from my personal device,

Employee Name:

BYOD Device(s):

Employee Signature:

Date:

Family and Medical Leave Act (FMLA) Policy

Basic Leave Entitlement

The Family and Medical Leave Act (FMLA) requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:

• For incapacity due to pregnancy, prenatal medical care or child birth;
• To care for the employee’s child after birth, or placement for adoption or foster care;
• To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or
• For a serious health condition that makes the employee unable to perform the employee’s job.

__________

Military Family Leave Entitlements

Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending postdeployment reintegration briefings.

FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember during a single 12-month period. A covered servicemember is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the servicemember medically unfit to perform his or her duties for which the servicemember is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list.

Benefits and Protections

During FMLA leave, the employer must maintain the employee’s health coverage under any “group health plan” on the same terms as if the employee had continued to work. Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.

Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.

Eligibility Requirements

Employees are eligible if they have worked for a covered employer for at least one year, for 1,250 hours over the previous 12 months, and if at least 50 employees are employed by the employer within 75 miles.

Definition of Serious Health Condition

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.

Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.

Calculation of Leave Entitlement

[Employer] uses the rolling 12-month method to calculate each employee’s annual entitlement of FMLA leave. What does this mean? It means that each time an employee takes FMLA leave, the remaining leave entitlement is the balance of the 12 weeks (or 26 weeks for covered servicemember leave) that has not been used during the immediately preceding 12 months.

This example will help illustrate how this works in practice. If an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave are available to be taken. If an employee used four weeks beginning February 1, 2011, four weeks beginning June 1, 2011, and four weeks beginning December 1, 2011, the employee would not be entitled to any additional leave until February 1, 2012. However, beginning on February 1, 2012, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2012. The employee would also begin to recoup additional days beginning on June 1, 2012, and additional days beginning on December 1, 2012.

Because of how these calculations work, employees taking FMLA leave may fall in and out of FMLA protection based on FMLA usage in the prior 12 months.

If you have any questions about how much FMLA time you have remaining, or need clarification on how this rolling calculation works, please ask [Employer]’s human resources department.

Use of Leave

An employee does not need to use this leave entitlement in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer’s operations. Leave due to qualifying exigencies may also be taken on an intermittent basis.

Substitution of Paid Leave for Unpaid Leave

Employees may choose or employers may require use of accrued paid leave while taking FMLA leave. In order to use paid leave for FMLA leave, employees must comply with the employer’s normal paid leave policies.

Employee Responsibilities

Employees must provide 30 days of advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days of notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer’s normal call-in procedures.

Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees also may be required to provide a certification and periodic recertification supporting the need for leave.

Employer Responsibilities

Covered employers must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required as well as the employees’ rights and responsibilities. If they are not eligible, the employer must provide a reason for the ineligibility.

Covered employers must inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If the employer determines that the leave is not FMLA-protected, the employer must notify the employee.

Unlawful Acts by Employers

FMLA makes it unlawful for any employer to:

• Interfere with, restrain, or deny the exercise of any right provided under FMLA;
• Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.

Enforcement

An employee may file a complaint with the DOL or may bring a private lawsuit against an employer. FMLA does not affect any federal or state law prohibiting discrimination or supersede any state or local law or collective bargaining agreement which provides greater family or medical leave rights.

Equal Employment Opportunity Policy

Statement of Equal Opportunity for All Employees

It is our purpose and intent that our philosophy of equal employment opportunity, as expressed in the next paragraph, be more than words expressed in a policy but be translated into our daily actions.

It is the policy and practice of [Employer] to provide equal employment opportunity to all persons, regardless of their race, color, creed, religion, sex, sexual orientation, gender identity, age, national origin, citizenship, mental or physical disability, military status, veteran status, or other illegal factors. We must continually strive, individually and collectively, to insure that all applicants and employees receive equal consideration and treatment with respect to employment, training, promotion, compensation, transfer, layoff, recall, discipline, termination, and other conditions and terms of employment.

It is through an understanding and practice of these beliefs that [Employer] will be able to continue to engage in equal employment opportunities.

In order to ensure maximum effect, all employees are encouraged to actively support programs that implement and maintain our policy of nondiscrimination.

If any employee has a question regarding the interpretation or implementation of our equal employment opportunity policy, the question should be directed to the President of [Employer], the Vice President of Human Resources, or any other executive or management team member.

Persons with Disabilities

[Employer] is committed to providing equal employment opportunities to otherwise qualified individuals with disabilities, which may include providing reasonable accommodation where appropriate.

In general, it is your responsibility to notify an officer of [Employer] or your immediate supervisor of the need for accommodation. Upon doing so, the officer or your supervisor may ask for your input or the type of accommodation you believe may be necessary or the functional limitations caused by your disability. In addition, when appropriate, we may need your permission to obtain additional information from your physician or other medical or rehabilitation professionals.

Harassment Policy

[Employer]’s general policy of equal employment opportunity provides, among other things, equal employment opportunity for all classes protected by law. In conjunction with and as an expansion of that policy, we specifically express the following policy against sexual and other forms of harassment in the workplace. This policy not only prohibits sexual harassment, but also harassment based on race, color, creed, religion, sexual orientation, gender identity, age, national origin, citizenship, mental or physical disability, military status, and veteran status.

Sexual harassment has been defined as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature which (i) is made either explicitly or implicitly a term or condition of employment, (ii) is used as a basis for employment decisions affecting an individual, or (iii) has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. An employee does not have to suffer a negative tangible job action (such as termination, demotion, denial of promotion or pay increase, assignment to an undesirable job, etc.) to have been a victim of sexual harassment. [Employer] will not tolerate conduct of this nature by any of its employees at any level of the organization. Any employee who believes that he or she has been subjected to such harassment should bring it to the attention of management at the earliest possible time.

Similar kinds of conduct, when not based upon sex, is also not acceptable at work. [Employer] also does not condone, and will not tolerate, harassment of our employees for any unlawful reason.

To bring a complaint of sexual harassment or a complaint of harassment for any other unlawful reason, please address the complaint directly to the President of [Employer].

You are encouraged to report any incident of harassment. There will be no negative action taken against any person because he or she has used this policy, in good faith, to make a complaint to [Employer].

If you are faced with harassment, please report it to management. Do not assume that [Employer] is aware of what is going on.

Upon receipt of a complaint, [Employer] will conduct an investigation at the earliest practicable time. The investigation may include interviews with all interested parties and witnesses, if any, as well as a review of any other relevant evidence.

Any employee who is determined to have violated [Employer]’s policy against harassment shall be subject to immediate discipline, up to and including the possible termination of his or her employment.

Any form of retaliation against an employee for using this policy against harassment is also strictly forbidden, and any employee who is determined to have engaged in an act of retaliation shall also be subject to immediate discipline, up to and including the possible termination of his or her employment.

Checklist of Potential Handbook Provisions

Review of Business EEO and Nonharassment Policies & Procedures

• Grievance Procedure
• Harassment Policy
• Nonretaliation Policy
• Review of Employee Training
• Open Door Policy
• At-Will
• EEO Policy
• Inclusion of all protected classes (including Genetic Information Nondiscrimination Act and state-specific military status)
• Sexual Orientation/Gender Identity
• Employer Information Report (EEO-1)³
• ADA and Reasonable Accommodation
• Respectful Workplace
• Family Responsibility Discrimination
• Affirmative Action Plan

Eligibility

• Authorization to Hire
• Nepotism
• Nonfraternization
• Drug Testing and Drug-Free Workplace
• Orientation
• Rehire
• Transfers and Promotions
• Job Postings

__________

Time Off

• Bereavement
• FMLA
• Military Leave
• Paid Time Off
• Sick Leave
• Vacation
• Holiday
• Personal Leave
• Other Leave of Absence
• Jury Duty
• Time Off to Vote

Standards

  Dress and Grooming

  Corrective Action

  Code of Conduct

  Performance Reviews

  No Solicitation

  Job Descriptions

Technology and Communications

• Cell Phones/BYOD
• Text Messages
• Email
• Internet
• Social Media
• Privacy and Electronic Monitoring

Employment Relationship

• Anniversary Date
• Pay Period
• Orientation
• Introductory Period
• Classification
• Separation
• Reference Checks
• Exit Interviews

Working Time

• Attendance
• Punctuality
• Hours of Work
• Inclement Weather
• Flextime
• Job Sharing
• Telecommuting
• Meal and Rest Breaks
• Time Recording and Reporting
• Wage and Hour Records Access
• Light Duty

Benefits

• Eligibility
• Health Insurance
• COBRA
• 401(K)
• Retirement

Compensation

• Loans to Employees
• Paychecks
• Direct Deposit
• Payroll Errors
• Deductions and Withholding
• Salary Advances
• Shift Differential
• Overtime
• Bonuses
• Expense Reimbursement
• Travel Reimbursement
• Tuition Reimbursement
• Wage Garnishment
• On-Call Time
• Exempt and Nonexempt

Conflicts of Interest

• Ethics
• Moonlighting
• Contact with Media
• Confidentiality

Housekeeping

• Signed Receipt
• At-Will Disclaimer