Editor's Note
Do You Really Need A Policy Handbook?
This is a nice article from Littler on new employment laws and updates to your policy handbook. But do you really need a policy handbook?
Policy handbooks are there for the attorneys. Your friendly employment lawyers are making sure that you and your employees know what rules apply so that if something goes sideways, they can point to what the rules are.
Except that employees don't actually read the policy handbook. They also don't pay attention to updates unless it affects them both directly and immediately. And while the legal notices that you have to post are posted, nobody reads those either.
Most larger organizations have employee portals. In some, it's easy to find information. In most, it's not. And often the policy handbook is just an uploaded .pdf of the last version you got from the lawyers.
Having policies you don't know about can be trouble. The thing about rules is that they 1) have to apply to everyone they say they apply to; 2) have to be applied uniformly and fairly every time. This never happens.
If the policy is that everyone takes a lunch after their 3rd hour but before their 5th hour working, then you probably can't let people take their lunch at 3 pm so they can pick up their kids from school. This stuff comes up all the time. And meal and rest breaks are tricky, so make sure you know what you're doing before you do anything.
The important thing to remember is that rules reduce flexibility and flexibility requires time and consideration of fairness.
Here are some questions to ask before you issue that updated policy handbook.
- Do we really need a policy handbook? For most smaller organizations, the answer is no. Handbooks are time-consuming to create, expensive to update, and you don't need most of what's in there. Besides the info you have to post (EEO, Wage Hour, Workers' Comp. etc.), you don't need most of what's in there. What problem are you trying to solve with a handbook?
- What's the best way to communicate this information? Make it easy to find, easy to understand, and easy to know who to talk to with questions. That means a useful search function, table of contents, and index, preferably with links to the information. If that's beyond your interest, capabilities, or budget, see question number 1.
- How will we keep this current and up to date? You can buy the updated posters for your state and those will get updated every year. Otherwise, you need a lawyer who is licensed to practice in every state you have employees to review and update your policies. And if some apply to some places and others apply to other places, you need an effective way to help people know what applies to them.
- Do we sometimes make exceptions to our policies? Everyone does. Do you know how to handle that? Are you sure you are not favoring some people over others? Have you looked at who is most affected and whether there could be claims of bias or discrimination? There is nothing that will destroy morale and engagement than making exceptions for some people but not others without a clear need and good explanation.
- What rules really matter to use and our employees? Most HR issues are individual concerns about leave, benefits, or how someone is being treated. Make it easy for employees to find out about leave and benefits and who to call if they are having problems with a colleague or manager. For the employers, the law is the law and it doesn't change whether or not it's included in your policy manual. Updating a handbook to include every employment law and every time it changes is not the best use of time or resources. It's okay to pick and choose the issues that matter, are most likely to affect employees, and that come up often.
Whatever you do, please do not address behavior issues by issuing new policies. Address the behavior issue directly with the person or people doing it.
Rules are hard to make. They have to be broad enough to cover the situations you're making them for, but not so broad that they cover situations that they shouldn't. And if you can't apply the rules fairly to everyone, then it may be better not to have a rule. Instead, address issues as they come up and make sure you have good reasons for what you do and those reasons are reflected in your notes somewhere. But don't make rules that are just going to backfire.
- Heather Bussing
- 2024 produced a number of new laws and legal developments requiring changes to employer policies, including changes related to discrimination and harassment, pregnancy and lactation, workplace safety and violence, and paid leaves, among others.
- Employers should review their handbooks and policies to ensure compliance with new federal, state, and local laws and set up a review schedule.
- Legal updates may also have related effects, such as requiring updated notices, new posters and on-boarding documents, and training requirements, although this article focuses on policy updates.
Legislatures across the United States continued to enact new employment laws in 2024, many of which require review and revision of current handbooks, including adding new policies and updating existing policies, for legal compliance and to help minimize legal risk. This article is not an exhaustive discussion of every new employment and labor law passed in 2024 or effective in 2025, or every potential policy update, but rather provides an overview of significant legal changes that could impact policy content.1 For many of the legal developments highlighted below we have linked to related Littler articles that provide a more detailed account of the legal change.
Workplace Rules
According to Littler’s 2024 Annual Employer Survey, 73% of the 402 executives, in-house counsel, and human resources professionals surveyed in the first quarter of 2024 expected NLRB and other government enforcement actions to have a moderate or significant impact on their business. They were right.
Decisions from NLRB administrative law judges (ALJs) applying the new legal standard for evaluating the validity of workplace rules adopted by the Board in Stericycle, Inc., 372 NLRB No. 113 (2023), have impacted companies by calling into question the legality of their workplace policies. For example, multiple cases in 2024 held that rules requiring employees to communicate respectfully or professionally were overbroad, and thus, unlawful. NLRB ALJs also took aim at policies designed to protect confidential company information, finding that such policies could be interpreted by an employee as illegally prohibiting discussion of wages, hours, benefits and/or working conditions. Other decisions continued the agency’s scrutiny of confidentiality and non-disparagement provisions in employment-related agreements.
Another NLRB target was non-solicitation rules. Although the new administration will almost certainly approach NLRB enforcement and workplace rules differently, employers should still exercise caution when drafting, reviewing, and enforcing rules that have been particular areas of focus for the agency.
Equal Employment Opportunity & Harassment, Discrimination and Retaliation Prevention
California – The Golden State enacted several amendments that could impact equal employment opportunity and anti-discrimination provisions in employer policies. AB 1815 updates the definitions of race and protective hairstyles found, in part, in the CROWN Act. Specifically, the new law removes the term “historically” from several statutes, thus defining race to include “traits associated with race, including, but not limited to, hair texture and protective hairstyles.”
SB 1137 amends the Unruh Civil Rights Act, the Education Code, and the Fair Employment and Housing Act to protect against discrimination based on “intersectionality,” meaning discrimination and harassment that occur based on a combination of legally protected characteristics, not from a single protected characteristic alone. The amendment also clarifies that discrimination based upon the perception that a person has one or more protected characteristics is also prohibited.
Additional States to Watch:
- Colorado – Under an amendment to existing antidiscrimination law, “hair length” joins hair type and protective hairstyles as a characteristic commonly or historically associated with race for purposes of Colorado’s CROWN protections. In addition, a new statute protects living organ donors from retaliation and creates a new private right of action.
- Illinois – Under amendments to the Illinois Human Rights Act, employers will now be prohibited from taking adverse actions against an employee or prospective employee based upon “family responsibilities” or actual or perceived decisions about reproductive health and welfare.
Employers should also consider reviewing harassment policies in light of the U.S. Equal Employment Opportunity Commission’s (EEOC) updated enforcement guidance issued in April 2024. Among other things, the guidance reminds employers that they are responsible for preventing harassing conduct perpetrated by customers, clients, vendors and the like, in addition to supervisors and coworkers. The guidance also addresses harassment based upon sexual orientation and gender identity, as well as the emergence of new issues such as online harassment.
Pregnancy, Lactation and Accommodation
For those looking to curl up in front of the fire with a long read, the EEOC has released its 408-page final rules and interpretive guidance under the Pregnant Workers Fairness Act (PWFA). The final regulations, which took effect June 18, cover accommodation requirements, the undue hardship standard, documentation, and prohibited practices, among other topics. The EEOC has provided several examples of what it considers to be reasonable accommodations, including specific accommodations deemed to be de facto reasonable. After reviewing these examples and other provisions in the regulations, employers may want to work with counsel to update pregnancy accommodation policies.
Pregnancy, Lactation and Accommodation
As part of the ever-expanding constellation of protections for pregnant employees, New York passed a new pregnancy-related leave law requiring employers to provide pregnant employees with up to 20 hours of paid prenatal personal leave in a 52-week period to attend prenatal medical appointments and procedures. In addition, New York also joined Georgia, Illinois and Minnesota in expressly requiring that lactation breaks be paid.
Workplace Safety and Anti-Violence
New laws requiring workplace violence prevention and heat illness prevention plans are gaining traction on both coasts. Employers covered by these new requirements should ensure they have developed compliant plans and provide any necessary training to their employees.
- California – In addition to California regulations requiring a written outdoor heat illness prevention plan for employers with outdoor workspaces, employers in California will now also need to adopt a written indoor heat illness prevention plan if indoor temperatures exceed 82 degrees.
- Maryland – Similarly, a new Maryland law requires employers to develop and implement a written heat-related illness prevention and management plan designed to protect employees from heat hazards when the indoor temperature is 80 degrees or higher.
- California – In September 2023, California created the first industry-wide workplace violence prevention plan, requiring employers to adopt site-specific plans by July 1, 2024.
- New York – Following the lead of California, New York adopted a new workplace violence law for retail workers, requiring many retail employers to implement a workplace violence prevention policy.
Paid Sick and Safe Time, Paid Family and Medical Leave, and Other Time Off
Alaska, Missouri and Nebraska passed new leave laws through ballot measures in the November election; at least one may face a constitutional challenge. Other states continued to expand covered reasons for use, family member definitions, and employee coverage. A round-up of notable changes, which take effect in 2025 unless otherwise noted, include:
- California – California amended its paid sick leave law to expand the covered uses for leave generally and for agricultural employees specifically. A new law also made notable changes to the unpaid leave entitlements for certain victims of crime or acts of violence.
- Connecticut – Connecticut significantly expanded its paid sick leave law, requiring that virtually all private employers in the state provide employees with paid sick leave no later than January 1, 2027.
- Massachusetts (Effective November 2024) – An amendment to the Massachusetts Earned Sick Time Law allows use for physical and mental health needs of the employee or employee’s spouse for pregnancy loss or failed adoption, surrogacy, or assisted reproduction.
- Michigan – Employers should continue to monitor the Michigan legislature and the impact of the re-enacted paid sick leave law expected take effect in February.
- Minnesota (Effective May 2024) – Minnesota made several changes to its Earned Sick and Safe Time Act, imposing new penalties, clarifying the rate of pay to be used for sick leave, creating additional exceptions to the definition of covered employees, clarifying the allowable increment of time in which sick leave can be used, and adding reasons for which employees may use protected sick leave.
- New York – New York’s Covid-19 Paid Sick Leave Law will expire on July 31, 2025. Note, however, that New York State’s HERO Act remains in effect, meaning most employers must continue to maintain a written Airborne Infectious Disease Exposure Prevention Plan,2 though they are required to implement its provisions only if the state issues a designation of an airborne infectious disease.
- Washington – A new law expands covered uses and the definition of family member under the state’s paid sick leave law.
Other changes to paid family and medical leave laws will occur in several states in 2025, including payroll deductions, through new laws in Delaware, Maine and Maryland. In addition, California eliminated an employer’s ability to require employees to use up to two weeks of vacation before receiving paid family leave insurance benefits, and the state will increase wage replacement rates for workers utilizing state funded benefit programs (State Disability Insurance and Paid Family Leave).
Recommendations
Employers should review their current handbook and policies for legal compliance and should set up a regular review schedule to ensure policies remain legally compliant. When making updates, it is important both to document the change and maintain copies of prior versions in case of future litigation.
Employers should also evaluate whether additional non-policy-related changes to current practices are needed. For example, states may have published updated posters and onboarding notices and/or employers may have new poster and onboarding notices. If employers maintain standard leave of absence or accommodation-related forms, changes may be needed to those as well, including to address the PWFA.
Additionally, increasingly states require mandatory training for certain laws. For example, New York’s Retail Worker Safety Act and California’s Workplace Violence Prevention Act require new hire and annual training, and California’s heat illness prevention regulations require training as well.
Some developments may impact payroll practices—for example, New York’s prenatal personal leave must be paid at the employee’s regular rate of pay (or minimum wage, if greater). Paid family and medical leave laws funded by employee contributions will also impact payroll processes, and advance notice of deductions may be required.
If you anticipate making policy changes and have questions about required updates, notification to employees and/or compliance obligations generally, we encourage you to reach out to knowledgeable employment counsel.
Footnotes
- Depending on an organization’s industry and municipal locations, other updates to employment-related laws may impact policy content and/or workplace practices, including for example, predictive scheduling and child labor laws.
- See Safety, Health, & Essential Rights Program | Department of Labor for additional information on this requirement, as well as model plans developed by the state.
