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By Karen Gentry | MiBiz
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WEST MICHIGAN — Updated employee handbooks are an important communication tool between businesses and employees and can be critical in avoiding litigation.

Ellen Hoeppner, associate attorney with Clark Hill PLC, said updated employee handbooks provide a strong defense in an era when a lot of policies are being challenged by federal agencies and litigants. The Equal Employment Opportunity Commission, the National Labor Relations Board and the U.S. Department of Labor Wage and Hour Division are challenging employment policies. In her practice, Hoeppner focuses on employment litigation and policy representing companies of all sizes.

Hoeppner and another attorney from Clark Hill recently presented a webinar titled “Dust Off the Employee Handbook: The Five Employment Policies You Need to Update in 2011.” The five areas in which employers and HR professionals need to focus include criminal background and credit checks, medical marijuana, anti-retaliation and anti-harassment and policies for social media and overtime.

Particular focus is being paid to overtime policies in light of the U.S. Department of Labor Wage and Hour Division hiring 350 new investigators in the last 12 months.

“These investigators are going out to employers and auditing their compliance with the Fair Labor Standards Act,” Hoeppner said. She said overtime policies are being challenged by investigators and there have been many class action lawsuits.

Overtime issues pertain to whether employees are classified as exempt or non-exempt with overtime mandated for non-exempt employees. Hoeppner said the test for classifying employees as exempt or non-exempt is complicated and many employees are challenging their classifications. There’s a lot of potential liability because groups of employees classified as exempt for many years could be owed overtime.

“The Wage and Hour Division has embarked on a public awareness campaign and is trying to inform employees about their rights under the Fair Labor Standards Act,” Hoeppner said.

Besides the overtime issue, Clark Hill is fielding a lot of calls on the issues of drug testing and social media. Although the courts have not ruled on the issue of medical marijuana in the workplace, Hoeppner said it’s clear that employers do not need to accommodate an employee’s ingestion in the workplace. She noted that “under the influence” in the workplace has yet to be defined. The case filed in Calhoun County last summer in Michigan will result in a ruling on the issue.

“It’s not clear whether a positive drug test is equivalent to being under the influence,” Hoeppner said.

Regarding social media, there have been an astounding number of employees who use social media while at work and are commenting about their employment on social media sites. The other aspect of social media encompasses employees’ use of the Internet and social media while at work. There is a broad spectrum of policies about employees’ use of the Internet and social media while at work and what is and what is not allowed.

“That really needs to be a business decision on the employers’ side,” Hoeppner said. “Employers have a lot of leeway in determining the parameters of that use.”

Hoeppner said although criminal background checks have been around for a long time, credit checks have been less common, but are increasing.

“The EEOC is challenging the use of credit checks by employers to exclude applicants unless an employer can show that it is job related,” Hoeppner said.

Good credit is probably a prerequisite for a financial offer, who will be handling all of the company’s finances and assets. Hoeppner said the EEOC is of the position that credit history is rarely job related and the credit checks have a disparate impact on minorities and potentially violates the anti-discrimination law.

Hoeppner said retaliation charges are currently skyrocketing — when someone claims an adverse employment action such as termination because they were engaged in a protected activity. Retaliation claims often result around Family Medical Leave Act requests, request to accommodate a person with a disability and internal complaints within a company about a practice that an employee believes violates law.

Hoeppner said age discrimination claims are often tied with another complaint such as claims that an employer interfered with their FMLA rights and retaliated for exercising those rights. Clark Hill recommends that employers train supervisors and employees on the definition of retaliation and investigate any complaints.

Maggie McPhee, director of information services for The Employers’ Association in Grand Rapids, sees the issues of overtime, social media and medical marijuana as current employer concerns — with overtime the most pressing. McPhee said many mistakenly believe that overtime only revolves around whether an employee is salary or hourly.

“That’s not the case — it’s whether they’re exempt or non-exempt,” McPhee told MiBiz.

Every position including office positions such as receptionists, accounts billable and payable should be run through a test to determine if that position is exempt or non-exempt.

McPhee said social media rules must be about protecting the company from what people are saying on social media and having a policy to fall back on if people are saying bad things.

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TAGS:

• clark hill
• ellen hoeppner
• employee handbook
• human resources
• maggie mcphee
• the employers’ association
• west michigan