It can be daunting for California employers to keep up with the myriad of ever-changing employment laws in a “typical” year. In 2020, employers were bombarded with a host of muddled changes to local, state and federal laws. This year promises more of the same, as our California courts and legislature have imposed a number of sweeping changes and a few hidden traps for employers. In 2021, more than ever before, employee policies must be clear, concise, enforceable and strategic to ensure the employer’s protection.
Below, we have addressed some of most commonly-asked questions about employee handbooks, along with some of the policy changes required in 2021.
The employee handbook provides a treatise for employers and managers on how to interact with employees, while at the same time meeting the employer’s obligation to provide notices and information to employees in a user-friendly manner. When discipline is necessary, the handbook provides an objective basis for that disciplinary decision, which helps to protect supervisors from claims of discrimination. Employee handbooks are typically one of the first documents requested by opposing counsel in a pending employment claim, and the quality of the employer’s policies may make or break a case. In class action claims, detailed and well-written employer policies may be the deciding factor in whether the court will certify the class for continued litigation.
Updating the handbook on an annual basis ensures that the employer has incorporated new cases and legislation effective in the new year and eliminated outdated provisions. As well, asking employees to review and sign a new handbook each year ensures that employees cannot claim that they weren’t aware of a specific policy, or haven’t looked at the handbook since it was given to them at orientation. Distributing annual updates also allows the employer to correct past errors and address internal issues without causing employees to wonder why changes suddenly became necessary. For these reasons, we recommend that employers refrain from telling employees exactly what was changed, instead reminding them that they should review the handbook in its entirety each year.
Yes! There have been mandatory and advisable policy changes in every calendar year for more than two decades. The 2021 legislation brought with it a number of critical updates that must be incorporated as of January 1, 2021. Examples include adding the California Family Rights Act for all employers with five or more employees, updating the sick leave policy with new mandatory standards, adding exigency leave to appropriate policies, adding a remote work policy if applicable to the business, and including a communicable disease policy, among many additional changes. There also are key strategic language updates for 2021, to provide employers with better protection and avoid some of the more common employee claims.
The COVID-19 pandemic led to an onslaught of complex federal and state legislation, most of which has changed more than once over the last year. With the upcoming change to our federal administration and ongoing legislative discussions regarding the extension or creation of additional COVID-19 stimulus packages, there likely will be further changes coming for 2021.
That said, we recommend that employers keep COVID-19 policies in a separate addendum, rather than drafting them into the general employee handbook. Because these pandemic provisions have changed so quickly, updating the handbook for every change would be daunting and inefficient. We also remain optimistic that we will be able to put the pandemic behind us in 2021, rendering these policies far more limited (or, hopefully, completely moot) in the future.
The Internet is rife with sample policies – many of them incomplete, inapplicable or incorrect! There also are numerous third party human resource and payroll services that provide handbooks as a part of their employer package. Although these services can provide basic policy language, typically missing from the finished product is expert strategic analysis of how to word various policies, as well as additional language not required by any law or case which is critical to the employer’s protection. Missing phrases and overlooked errors may make or break the employer’s success in an employee claim.
When we prepare handbooks for our clients, we incorporate not only the fundamental legal requirements, but also strategic drafting and additional language designed to prevent or defeat arguments raised by employees in the workplace on an informal basis. Most of these arguments will never be codified in legislative action or published in a court opinion, but can result in costly workplace disputes. Even employers who have outside resources available to provide their basic policy language should review those policies with employment law counsel before distributing final materials to employees.
Updating your employee handbook is an efficient and effective way for employers to stay ahead of the multiple compliance “gotcha” traps that took effect on January 1, 2021. A little preventative action can go a long way toward avoiding costly employee claims, and can provide peace of mind in a year otherwise fraught with challenges.
Reach out to your LightGabler attorney, or send an email to firstname.lastname@example.org, to obtain more information about updating your current handbook or creating a new one. As a courtesy to employers, LightGabler’s handbooks are sent with attached confidentiality policies and arbitration agreements at no additional charge. If you have already updated your handbook, contact us to conduct a final review of your policies before distribution.
For further information regarding employee handbooks or other employment law issues, contact the attorneys at LightGabler.