Generally an employer provides its employees with a handbook or workplace policies to set forth expected behavior and procedures within the workplace. Employer policies can impact your ability to bring a claim in court and in some cases can create contracts between the employer and employee. To learn more about different types of employer policies and their lawfulness, read below:
1. Does an employer have to follow its own handbook or personnel policy?
Some state courts have held that an employer handbook is a contract unless the handbook expressly states that it is not a contract. If the handbook is deemed to be a contract by the court, then the employer can be liable for breaching that contract if it fails to follow the procedures outlined within the handbook. For example your handbook might state that employees “will” rather than “may” receive a severance package- in the past this has been interpreted to create an obligation on behalf of an employer to provide a severance package for its employees.
Additionally handbooks can play an important role in wrongful termination or discrimination suits. If an employers handbook or personnel policies provide procedures to be followed in terms of employee discipline or termination, those procedures should be followed and applied evenly. For instance, if an employer applies the policies discriminatorily, such as following the handbook for men but not for women, this can be used as evidence of discrimination. Another possible claim an employee may bring if an employer fails to follow discipline or termination policies is a breach of contract claim.
State laws vary in evaluating whether a handbook is a contract. You should consult your own state’s law to determine if it considers handbooks to be contracts between employers and employees. Additionally, it is important to realize that an employer can generally change its handbook or personnel policy at anytime, so if your employer sends out a personnel policy update be sure to read through it to be aware of your rights.
2. My employer has a general policy, but it only seems to affect certain employees- is this legal?
It is true that sometimes facially neutral policies (policies that are applied to all employees equally and are not expressly illegal) can sometimes violate the law.
For example, a policy may prohibit promotion when an employee takes off four or more consecutive weeks during the year. A policy like this would tend to discriminate against women who took time off due to pregnancy or employees who were sick or otherwise temporarily disabled. Individuals negatively affected by a policy like this could potentially file a lawsuit against their employer.
3. What are examples of employer policies that might help prevent different types of discrimination or affect my ability to bring a claim in court?
- Equal Employment Opportunity (EEO)/Anti-Discrimination Policies:
Virtually all companies have these types of policies and they must comply with federal & state laws – including contracting requirements and poster requirements (for more information on these laws see our employment discrimination page and our federal contractors page). Some company policies go further than the minimum requirements provided by state and federal law to expand employee protection (e.g. sexual orientation & gender identity). When an employer does not follow their own policy regarding the ways in which an employee in a protected category is treated, this can raise the inference of discrimination.
- Harassment Policies:
Companies can minimize liability by having anti-harassment policies. These can include various obligations, for example, an obligation to put an employer on notice or to follow the harassment policy when making a claim. If an employee does not follow the internal procedures outlined by the policy they may not be able to pursue a claim in court.
- Situational policies:
These types of policies include inter-office dating policies and anti-nepotism (policies that prohibit or limit situations in which employer and employee relatives can work at the company). These policies are legal and you should be aware of them as violation of the policies may lead to discipline or termination.
- Non-Disparagement or Confidentiality Clauses:
These clauses are common in employment contracts and provide a safeguard for the employer’s reputation. However, these types of policies may be illegal if they have the effect of prohibiting employee action that is protected by Section 7 of the National Labor Relations Act (NLRA) such as “concerted activity” for the purpose of collective bargaining, mutual aid or protection.
In a recent NLRB decision, William Beaumont Hospital, the majority of the board ruled that certain employer policies were unlawful because they were overbroad in that the language could encompass protected Section 7 activities, or could “reasonably be construed to (explicitly) prohibit expressions of concerns over working conditions[.]”Unlawful language in the employer’s policies included:
– “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism;”
– “behavior that is. . . counter to promoting teamwork;”
– language prohibiting conduct that “impedes harmonious interactions and relationships;”
– language prohibiting “negative or disparaging comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors.”
In contrast, the following provisions of the same employer’s policies were upheld as lawful:
– “[w]illful and intentional threats, intimidation, harassment, humiliation, or coercion of employees, physicians, patients or visitors;”
– “[p]rofane and abusive language directed at employees, physicians, patients or visitors;”
– “[b]ehavior that is rude, condescending or otherwise socially unacceptable;”
– “[i]ntentional mis-representation of information;”
– “[b]ehavior that is disruptive to a safe and healing environment.”
For more information on section 7 of the NLRA see question 10 on our Retaliation for Union Activity/Collective Action page.
- Non-Compete and Arbitration clauses:
Non-Compete and Arbitration clauses are common in employment contracts and are generally legal and binding. While an employer cannot technically force you to sign a non-compete agreement or an arbitration clause, they can legally choose not to hire you or to terminate you if you refuse to sign the agreements. For more information on Non-Compete and Arbitration clauses and how they affect your workplace rights, see our respective pages: Non-Compete Agreements and Arbitration Agreements.
- Social Media and Internet Usage Policies:
(a) Can my employer have a policy regarding my internet and social network usage?
Yes. In fact, employers are generally able to monitor your internet usage without an express personnel policy on the matter. For example, employers may monitor e-mail from the work e-mail address provided to you, or monitor any e-mail stored on your work computer and only two states, Connecticut and Delaware, require employers to notify employees that their e-mail is being monitored.
It is important to note that you can generally be fired for not following internet usage policies or if the employer finds your internet usage unacceptable. However, some union contracts or state laws (such as those in California), may limit an employer’s ability to monitor your computer activity, so it is important to consult your contract and your state’s laws.
For more information see our Social Networking & Computer Privacy page.
(b) My social media accounts are private- Can my employer demand access to my account or base employment decisions off of my profile?
There are no federal laws that prohibit an employer from requiring an employee or job applicant to provide their username and password for social media accounts; however, a number of states have enacted laws with various levels of protection in regards to employees social media accounts. For more information on these laws and how to respond to an employer who asks for you social media log-in information, see our Social Networking & Computer Privacy Page.
Employers generally can and do use information from accessible social media accounts to make employment decisions. Information gathered from social media can be used in the hiring process with some limitations (ie: an employer cannot use information from social media to determine your age, race, disability, religion, national origin, or gender and discriminate based on those facts).But in general, an employer can fire you for having a personal website or blog that it deems inappropriate, with very limited exceptions. While some state laws provide limitations to the employers’ use of social media in discipline and termination decisions, the courts will generally weigh the employee protections against an employer’s business interests. For more information on state and federal laws regarding the use of social media in employment decisions see our Social Networking & Computer Privacy Page.
An important exception exists with regard to “concerted activity” for the purpose of collective bargaining, mutual aid or protection. The National Labor Relations Board (NLRB) has stated that, under Section 7 of the National Labor Relations Act (NLRA), workers’ social networking and social media usage can be protected if it is “concerted activity” for the purpose of collective bargaining, mutual aid or protection. Thus, protesting about working conditions might be protected, while complaining about a boss might not be. For more information on Collective Action see our Retaliation for Union Activity/Collective Action page.
- Health & Safety Policies:
Federal law, the Occupational Safety and Health Act (OSHA), gives employees the right to a safe and hazard free workplace. Thus, OSHA provides the minimum guidelines for health and safety that employers must implement. For more information on OSHA, how it works and who is covered, see our page on Workplace Health and Safety Protections and our State Law page. Employers may implement their own health and safety policies that go beyond OSHA and state law requirements to ensure employee health and safety so be sure to check your employer’s policies.
Additionally if you suffer a workplace injury you may be eligible for workers’ compensation. This is an important benefit that provides for replacement income and medical expenses for employees who are injured at work and unable to continue working due their injuries. Workers’ compensation extends to illnesses that are specifically caused by something unique to the workplace. Most private employees are eligible for workers’ compensation, and it is illegal for an employer to retaliate against you for utilizing your benefits. To learn more about workers’ compensation see our workers’ compensation pages under our Workplace Injuries/Health & Safety section.
- Leave policies:
Employers may implement leave policies that more generous than those required by law, but there are important minimum standards set by federal and state law mandating employee leave in certain situations.
– Family and Medical Leave:
The Family and Medical Leave Act is the primary federal law protecting the right to take family or medical leave without losing your job and health insurance benefits or suffering retaliation. The FMLA guarantees an employee, male or female, who has been working at least a year for a company with 50 or more employees the right to job-protected, 12-week, unpaid leave to recover from a serious medical condition or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse. For more information on the FMLA see our Family/Medical Leave (FMLA) page.
Additionally, some states and localities have imposed more generous state laws mandating family and medical leave, and sometimes providing for paid leave. For more information on state laws see our Family/Medical Leave State Laws page and our State and Local Paid Sick Leave Laws page.
Members of the United States Armed Forces are entitled to special workplace protections under federal and state law. These laws help protect military servicemembers’ civilian employment and benefits when they are required to leave their civilian employment for a period of military service. The laws also aim to ensure that servicemembers do not face employment discrimination due to their military commitments. The governing federal law for military leave is the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). For more information on USERRA see our Military Leave page. Additionally, some states have enacted their own laws providing additional protections to servicemembers. See our State Laws on Military Leave page for a list of applicable state laws.
Unlike many countries, the United States does not require employers to offer vacation time. However, most employers do, though the way they go about it can differ significantly between employers. Thus, it is important to read your employer’s policies on vacation time to fully understand your benefits. To learn more about employee rights with respect to vacation policies see our Vacation Pay page.
4. What should I do if I have a concern regarding my employer’s policies?
Possible concerns regarding employer policies include, but are not limited to:
-I was fired for not following my employer’s policy…
-My employer has policies in place, but its failing to follow its own policies…
-I think my employer has an illegal policy…
Generally, you may want to first seek a remedy through any grievance procedures your employer already has in place. This may be the most immediate way to address your concern and some legal claims require that this step be completed prior to filing a claim. If internal grievance procedures are inadequate or ineffective to resolve the issue, you may have access to a legal remedy. While this FAQ may serve as a general starting point to find out if you have a legal claim in a matter concerning your employer’s policies, due to the fact-specific nature of such claims, as well as differing state laws, it is important to consult a lawyer in your area to determine if you are entitled to any legal remedy.
© 2017 Workplace Fairness