Employee classifications can affect eligibility for benefits, duration of employment, compensation, and employment expectations. Employee classifications therefore should be defined clearly. Classifications should be drafted to avoid any implication that employment is anything other than at-will. For instance, employers are cautioned not to refer to an employee’s status as full-time permanent because such a classification is inconsistent with the concept of at-will employment.
Employers may define part-time employment status at any level they wish. However, simply calling someone a part-time employee will not make the individual a part‑time employee for the purpose of compliance with certain federal and state employment laws that specifically or essentially define the term themselves. For instance, if an employee who is labeled part-time under an employer’s policy works more than 1,250 hours per year, the employee may be eligible for a job-protected leave of absence under the federal Family and Medical Leave Act (FMLA), if the employer is covered by that statute and the employee otherwise meets the criteria for eligibility.
Similarly, simply placing an employee in either the exempt or the non‑exempt category does not determine the employee’s actual status under the federal Fair Labor Standards Act (FLSA). The employer must be careful to fully evaluate the functions performed by each employee to ensure that they are properly categorized. In addition to falling within one of the narrowly defined exempt categories (exempt categories can be found at www.dol.gov), specific minimum salary requirements and the exercise of independent discretion and judgment are required in most exempt positions.
Employers may establish orientation or introductory periods of employment to limit eligibility for benefits or to evaluate employee performance. The most conservative of at‑will advice recommends against labeling such periods as probationary because completion of probation may imply that the employee’s employment is no longer at-will. Instead, employers may wish to characterize such periods by terms such as orientation, trial, or introductory. Likewise, employees who complete the orientation period should preferably be referred to as regular employees rather than permanent employees to prevent them from claiming that their employment is no longer at-will.
Further, from a legal standpoint, it may sometimes be problematic to terminate an employee on the basis of an accumulated work record in the absence of some triggering event, such as an unexcused absence or a specific act of misconduct. The lack of a specific precipitating event, or permitting an employee to continue to work after such an event, before terminating employment may unwittingly provide circumstantial evidence of discrimination. The orientation period thus serves as a definitive time period for evaluating and possibly terminating employees based upon an accumulated work record, removed in time from any particular acts of misconduct or performance shortcomings, without necessarily creating such an inference of discrimination. An orientation period also gives the employer a defined window of time during which to treat employees differently from longer‑term employees without suggesting improper motivation.
A union-free policy is not only legal, but advisable, if an employer wishes to avoid unionization of its employees. Such a provision may provide some protection against union organizing efforts in three respects.
The two sample policy options offered reflect the fact that different industries, and different businesses within each industry, have varying risks and concerns with regard to union organization. The first policy, the “Union-free Policy,” is for those companies that have a strong concern regarding the chances of organizing efforts. The second policy, the “Statement on Unionism,” is for those companies that believe a union campaign is less likely, but still wish to address the issue in advance with their employees.
The primary rules to follow in preparing any union‑free policy are that the employer not:
It is thus advisable to state, as in the samples, that any efforts by the company to oppose unionization will employ only lawful means.
A union‑free policy also may address the implications of employees signing union authorization cards. If a union gets 30% of the employees in an appropriate work unit to sign cards, it can force an election. Therefore, it is advisable to inform the employees of the serious consequences of signing such cards.
Finally, the employer must avoid having both a union‑free policy in its handbook and a handbook acknowledgment form that requires employees to agree to abide by all of the policies contained in the handbook. The employer cannot legally compel employees to remain union‑free.
A statement of general rules and regulations, as well as the company’s policy for administering discipline, is a vital part of any employee handbook or personnel manual. Such a statement allows both the employer and the employees to know what forms of behavior will not be tolerated, thus increasing overall employee confidence in their workplace and their jobs. For those employees who receive discipline under such a policy, written rules and regulations may reduce the likelihood that the employee will pursue a discrimination claim by alleging that the employer did not apply its rules uniformly or that the employee did not know that his or her actions were improper. Such a policy also is valuable for supervisors because it informs them of the actions that are against the rules, so that they will know when to take disciplinary action, thereby allowing for the uniform implementation of rules throughout the plant.
In addition, the uniform application of rules such as those in the sample policy can provide a strong defense against claims of discrimination based solely on circumstantial evidence (i.e., treatment of similarly situated employees differently). Further, written rules of conduct make it easier for an employer to establish that an employee was discharged for just cause in the unemployment compensation context.
When drafting rules and regulations, it is important not to designate a particular form of discipline for a particular infraction because the employer should reserve the discretion to impose whatever discipline it believes to be appropriate in each situation. Thus, the employer should include a statement that the policy simply is a guide and does not cover every possible infraction. In addition, no employer could possibly anticipate every possible act of misconduct meriting discipline and therefore should state that its rules are not limited to those specifically mentioned in the handbook or manual.
Finally, to preserve the principle of at-will employment, employers should not include any provision stating grounds for discipline or discharge because such a provision may be construed as limiting an employer’s discretion to terminate employees even without sufficient grounds or bases.
It is clear from the context of the sample policy that it is intended for manufacturing settings. There is, however, no subject area of employee policy‑making in which it is more important to individually tailor the provisions of the policy to meet the employer’s own business needs and objectives than in listing general rules and regulations and in stating the disciplinary procedures the employer intends to follow.
Organizations should develop and document a procedure for dealing with ethical dilemmas as they arise with their employees. An ethics (or appropriate conduct) policy should identify the ethical values of the employer – oftentimes set forth in the employer’s vision statement. A policy should provide:
Examples of topics typically addressed by codes of conduct include:
These policies tend to be different for very employer and should be tailored accordingly.
An employer’s attendance policy is an important part of its written employment policies because it allows the employer to set fixed standards for attendance. Obviously, good employee attendance is critical to business. A uniformly enforced no‑fault policy can be a significant tool for the employer to maximize attendance and control individual problems with absenteeism. Additionally, such a policy may boost employee morale by minimizing resentment on the part of some employees toward co-workers who suffer no consequences for being chronically absent.
On a practical level, any attendance policy should be harsh enough to allow the employer to discipline those employees whose absences cause problems, yet, to achieve the goal of uniform enforcement, lenient enough that the employer does not have to terminate good employees who are absent infrequently. Also, the employer may have different attendance policies for different departments so long as there is a legitimate business reason for doing such. It should be noted, however, that differing policies may cause morale problems for those who are subject to the harsher attendance requirements.
To encourage employees with prior absenteeism problems to improve their attendance and to discourage game playing, the policy should be on a rolling 12‑month period, with accumulated points or disciplinary warnings being dropped after 12 months have passed. It also should provide for varying treatment of different types of absences so as to encourage preferred absences (for example, pre‑approved leaves over spontaneous single‑day absences). Further, rewarding employees for good attendance is good for employee morale and ultimately may improve overall attendance. Finally, the policy must make clear that leaves taken pursuant to the Family and Medical Leave Act or as an accommodation under the Americans with Disabilities Act are not counted against the employee under the policy.
A reasonable, uniformly applied attendance policy provides a potentially strong defense to a discrimination claim in appropriate circumstances (i.e., if the employer terminated an employee – not for a discriminatory reason – but for failure to abide by the published attendance policy. Such a policy also is an employer’s best defense to an unemployment compensation claim by an employee terminated for excessive absenteeism. Such a policy allows the employer simply to show that the employee violated the uniformly enforced policy and was discharged for doing so. Thus, even if an employee has a doctor’s excuse for a particular absence, but accumulates too many points under the policy, he or she may be discharged without exposing the employer to liability for unemployment compensation. Again, the policy must be reasonable, uniformly enforced, and in writing to be effective.
In addition, a well-written and uniformly enforced attendance policy may avoid liability under the ADA to job applicants or employees whose disabilities prevent regular and consistent attendance. The employer’s reasonable attendance standards may be deemed an essential function of the job, which may not have to be relaxed as part of a reasonable accommodation, if spelled out in advance and uniformly and consistently applied. Enforcement of the ADA, however, has become more stringent and employee oriented. Accordingly, it is advisable that you consult counsel prior to terminating employment for poor attendance due to illness. Employers have a duty to accommodate and oftentimes flexible schedules and intermittent leave are considered “reasonable.”
Unfortunately for larger employers covered by the FMLA, this law has made it substantially more difficult to accomplish the main objective of attendance policies – eliminating the chronically absent employee. The FMLA specifically prohibits covered employers from disciplining or discharging an eligible employee for an absence caused by a protected reason, including a serious health condition of the employee or a member of his or her family. Where medically necessary, such leave may even be taken intermittently or on a reduced hours leave schedule. Although the FMLA does impose certain requirements upon employees with respect to eligibility for leave – notice to the employer, and medical certification – employers covered by this law should avoid assessing points to, disciplining, or discharging an employee absent on an FMLA‑protected leave.
The objective of a health and safety policy in all work settings is to make employees more conscious of safety concerns and reduce the likelihood of injury to employees and visitors, thereby reducing the employer’s potential exposure to criminal and workers’ compensation claims. This policy also gives employees a mechanism for reporting safety concerns and on-the-job injuries so that the employer can respond promptly and appropriately. While the first sample policy is intended to apply to a manufacturing setting, even employers in the safest work environments should provide at least a short statement in writing to employees that shows the employer’s concern for their health and safety. The alternative policies are provided for this purpose. Although employers need not include every safety rule and procedure for each job or department in its written policy, the employer should be careful to ensure complete compliance with all applicable federal and state occupational safety and health laws throughout the facility. Consultation with an attorney may be helpful in accomplishing this objective.
With respect to medical releases, the employer should ensure that the employee’s personal physician or the company’s physician is familiar with the types of work performed at the company, in particular the specific functions performed by that employee in his or her job. This will enable the physician to properly assess the effect that the employee’s injury or illness will have on his or her ability to perform the required work. Further, the employer has the legal burden to interpret the physician’s statement to determine whether the employee may have a protected disability under the ADA such that he or she is entitled to a reasonable accommodation. If the physician’s statement is ambiguous, the employer should obtain clarification from the physician or a second professional opinion regarding the implication of particular limitations upon the employee’s ability to perform essential job functions.
Finally, the policy also should provide a disciplinary point of reference for dealing with employees whose presence in the workplace may subject themselves or others to a significant risk of substantial harm. This may be very helpful under the ADA in dealing with employees whose disabilities create such risks. A smoking policy has also been provided.
A substance abuse policy such as the following sample policy expresses the employer’s legitimate concerns about the use of drugs and alcohol in the workplace. Such a policy puts employees on notice that the employer simply will not tolerate the use or possession of drugs and alcohol in the workplace and informs them of the ramifications of their choosing to do so. This sample policy also provides a safe-harbor provision for employees who elect to seek the company’s confidential assistance before their drug or alcohol use leads to performance problems in their jobs, thus encouraging employees to voluntarily seek such assistance.
The ADA makes having a clear substance abuse policy very important because the ADA allows covered employers to refuse to hire or to fire someone for current illegal drug use, or for the use of or being under the influence of illegal drugs or alcohol at work. The ADA does not allow covered employers to refuse to hire or fire someone for having a record of or having recovered from substance abuse. Therefore, the policy must be drafted and administered to ensure that it applies only to those individuals who currently abuse drugs, use alcohol at work, or report to work under the influence of alcohol or drugs, and not to those who have recovered from their addictions.
Additionally, employers may conduct pre-employment drug screens without violating the ADA or any Illinois law. However, employers will want to take into consideration the Compassionate Use of Medical Cannabis Pilot Program Act in Illinois prior to drafting, or re-drafting, their pre-employment drug-screening policies. Under the Act, employers are prohibited from penalizing a person solely for his or her status as a registered qualifying patient or a registered designated caregiver, unless failing to do so would put the employer in violation of federal law or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules. However, the statute provides that it does not prohibit an employer an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner. Additionally, private employers may prohibit employees from possessing or using medical cannabis on company property. Consequently, employers who wish to conduct pre-employment drug tests should consider whether they want to continue screening for cannabis use and what uniform steps they would take in the event a prospective employee tests positive for cannabis use.
Furthermore, employers may be subject to charges of discrimination if the results of a drug test lead to information about another disability and the employer discriminates against the employee on the basis of that disability. The EEOC also takes the position that pre-employment alcohol testing is prohibited by the ADA.
Employers who have federal or state government procurement contracts in the amount of $100,000 or more must publish and distribute to all employees a drug‑free workplace policy such as the sample policy. Such a policy serves purposes similar to the substance abuse policy discussed previously. It is therefore advisable to include the policy in the employer’s employee handbook or personnel manual to reinforce the employer’s policy regarding substance abuse. The acknowledgment and consent form is an important aspect of the drug‑free workplace policy because the law requires that all employees working on the government contract receive a copy of the policy and abide by its terms as a condition of employment.
A no solicitation/distribution policy serves two important purposes:
One concern with a no solicitation/distribution policy is that such a policy must be enforced uniformly to be effective. In order to have the policy upheld against a union organizing campaign, the employer must prohibit even such minor solicitations as candy and cosmetic sales. Although this may seem petty, the overall benefit of uniform enforcement may well be worth the price.
Another concern with such a provision is that it will force union organizers to contact employees away from the workplace. Although this generally will make initial organizational efforts more difficult for the union, the employer may not be aware that an organizing campaign has begun until the union forces an election. The policy may therefore result in the employer’s inability to reply to union claims and promises until after the union has gained significant support with the employees. This problem may be avoided by deleting certain sections of the policy or relaxing enforcement of the policy if the employer fears that an organizing campaign is on the verge of occurring. Once the employer has deviated from the policy, however, the employer may be prevented from relying upon it to prevent subsequent organizing efforts.
Because the principle value of the policy lies in the union‑avoidance context, those employers who are either already organized or not in danger of unionization may regard this policy as optional.
There is a common misconception that the First Amendment to the United States Constitution protects the right of an individual to discuss his or her political beliefs at any time without limitation. Although the First Amendment restricts the government’s ability to eradicate “free speech,” the First Amendment does not require private employers to let their employees engage in political discussions or political campaign efforts in the workplace. In fact, it is generally a good idea for employers to institute a policy that prohibits campaigning efforts in the workplace.
Even though neither federal nor state employment discrimination laws recognize political affiliation as a protected class, employers should be cognizant of the fact that politics tend to inherently overlap with protected classes of discrimination. This is because, more often than not, a heated political discussion on a polemic issue can be misinterpreted as accusations of discrimination on the basis of a protected class when the employees cannot resolve their political differences. For example, disagreement over a legislative bill on same-sex marriage, or a candidate’s stance on abortion, can be interpreted as an attack on religious beliefs; or disapproval of a female candidate can be twisted to support an inference of discrimination on the basis of sex.
Consensual romantic relationships present many potential problems in the workplace. Because they are consensual in nature, these types of relationships do not generally fall under the policy concerning sexual harassment. Nonetheless, these relationships can create a whole host of legal and practical concerns.
By maintaining a non‑fraternization policy such as the sample policy, the employer may minimize the risks associated with relationships between employees. As the policy itself suggests, these risks include possible sexual harassment or wrongful discharge claims that may result from the souring of relationships between supervisors and their subordinates. Additionally, such a policy should assist in maintaining positive employee morale by ensuring that employees do not feel that supervisors have favorites among them. However, extending such a policy to relationships between lower level (i.e., non‑supervisory) employees might prove to be problematic, if the employer is unable to demonstrate a legitimate business justification for such a rule.
With an ever-increasing sensitivity to employee privacy concerns among policy‑making bodies and courts at both the federal and state levels, many employers are reluctant to take disciplinary action against employees on the basis of their conduct during non‑working hours. Still, an employee’s inappropriate off‑duty behavior may reflect poorly on the employer’s business, particularly for employees in positions such as outside sales or other capacities in which the nature of the job is to represent the employer to the public. An employee’s off-duty misconduct, particularly criminal activity, may reflect negatively upon an employee’s character and fitness to perform a job with the employer’s full confidence.
Because Illinois remains an at-will employment state, employers may take appropriate disciplinary action against employees who engage in inappropriate off‑duty conduct as contemplated by the sample policy. The touchstone in every case should be business‑relatedness: Does the employer have a legitimate, nondiscriminatory, business reason for disciplining the off-duty conduct at issue? If so, then the employer may safely discipline the employee in a manner fitting with the employee’s misconduct.
Celebrating holidays or birthdays at the office can be a great way for an employer to increase office morale and show appreciation for employees. Creating a uniform policy dealing with workplace celebrations is a good idea because it will decrease the chances of inadvertently favoring some employees over others. A policy on workplace celebrations is going to vary based on how big a company is and what the office culture is like. For smaller companies, it may be possible to recognize every employee's birthday on the actual day. But, larger companies tend to host one birthday celebration per month that honors all of the employees with a birthday that month. This method is a good way of including all employees, while also taking the pressure off of employees who may not want to celebrate their birthday for religious, cultural, or personal reasons.
Companies can consider creating a planning committee that will determine which events should be celebrated and also organize the celebrations. Being a member of the planning committee can easily transform into an unwanted burden if the job is relegated to one level of employees. For this reason, it is ideal to compose the committee from a cross-section of employees.
There are a few items that the committee should keep in mind: