Employee handbook need an overhaul? Key changes for 2023

Every organization should have an employee handbook because they outline expectations, terms and conditions of employment, and, most importantly, minimize legal risk. However, a handbook is of little value if it is not regularly updated to comply with changes in the law or the ever-evolving world. In addition to standard employee policies, employers should consider including the following to reflect the current state of the workplace.

Remote work and flex-time policies

As a result of the pandemic, we are seeing three types of work coexist: remote work, hybrid work, flexible hours. It is imperative that a company has policies to govern these work structures, including outlining the following:

• Parameters of employee eligibility and frequency, including how remote and in-office work will be monitored.
• That remote work is a privilege, not a right.
• Attendance and availability expectations—clarify that remote work does not mean flexible hours.
• Requirements for exempt and nonexempt employees for timekeeping reasons.
• Security requirements of remote work.
• What remote office materials and expenses the company will cover, if any. This may be governed by state law depending on employee location(s).
• That all company policies apply even when working remotely.

Additionally, the old 9-to-5 schedule no longer works for many employees who are demanding flexible working hours. Employers accommodating flexible work schedules should have a policy explaining who is eligible, attendance expectations, how time will be tracked, when breaks can be taken, and how overtime will be compensated.

Dress code, grooming and appearance policies

After working for several years in pajamas, many employees are resistant to returning to business attire. As a result, many forward-thinking businesses have adopted a casual wear policy. Less restrictive dress code policies may also help attract new talent.

Related: 5 common employee handbook mistakes and how to fix them

Additionally, employers should review their policies to ensure they do not lead to discrimination claims. Indeed, several states, including New Jersey, implemented laws to protect certain hairstyles, such as braids, locks, twists and knots, that are historically associated with race. Policies should also be reviewed to ensure they are inclusive of the LGBTQ+ community.

Security and privacy issues

Employers should update security policies and establish procedures that apply when working in the office as well as remotely. For example:

• Require employees to use antivirus programs and secure Wi-Fi networks.
• Require employees to use passwords and shut down computers at the end of the day or when away from their computer.
• Outline the danger of using laptops in public and require use of privacy mode when so doing.
• Have a clean desk policy requiring that employees remove confidential information from their workspace when unoccupied and at the end of the workday, and, ideally, place such documents in a locked location.
• Require that passwords be changed frequently and not be left near a computer or in an accessible location.
• Require shredding of confidential information.
• Have rules in place for videoconferencing such as: blurred backgrounds or cleaned desks; be in a quiet space, or if in public, requiring headphones; be careful to not share the wrong screen.
• Advise that chats/comments in videoconferencing platforms are recoverable so employees must be extra cautious when utilizing them. These “chats” are serving as evidence in employment litigations.

Social media policies should be updated to similarly address privacy concerns and confidential information

Communicable disease policies/COVID-19 policies

During the pandemic, many companies implemented policies related to staying home if sick, wearing masks, vaccinations, social distancing, testing, and other safety and health regulations. Employers may need to revise these policies so that they are not COVID specific but can instead address any communicable disease and viruses.

Paid time off

Many employers are moving toward an “unlimited” or “managed” time off policy rather than a set number of days. One reason for this is some states have laws requiring all accrued and unused vacation time to be paid out at the end of employment. A work around this is to have unlimited vacation or a take what you need policy—where no amount of time is actually promised, so there is nothing to pay out.

State supplements

During the pandemic, many employees relocated, and remote employees were hired. Because employees are protected by the employment laws of the state in which they work, employers must have a state-specific handbook supplement for every state in which they have an employee.

Diversity equity and inclusion

Employers can highlight their commitment to DEI by incorporating a DEI mission statement in their handbook and may refer to separate plans and programs the company is implementing to address DEI issues in the workplace.

In furtherance of a commitment to DEI, use only inclusive pronouns such as “they/them” or just use the word “employee” throughout the handbook, rather than less inclusive gender-specific pronouns of “he/she.”

Include an equal pay policy, particularly in light of New Jersey’s Equal Pay Act, which makes it unlawful to pay an employee less than another individual not in that employee’s protected class for “substantially similar work.”

In a similar vein, revisit any paid leave policies to ensure they are not discriminatory. A policy providing extra paid medical benefits only to mothers disabled as a result of giving birth may result in discrimination claims by other employees with non-childbirth-related medical conditions. Better to offer a paid medical leave benefit for any qualifying disability, not just childbirth.

Similarly, the trend is to move away from “maternity” leave to the more inclusive “parental” or “caregiver” leave for time to bond with a child. Such benefit should include children who come into the household through adoption, surrogacy, or foster care, not just via birth. Employers should either offer one parental leave benefit or offer categories of leave defined by the role of the caregiver such as “primary” and “secondary” caregiver. Employers may also consider expanding parental leave to caregiver leave, which covers caring for a close family member and is similar to protected leave under the Family and Medical Leave Act.

Another way to foster inclusivity is by revising paid holiday policies to provide employees with a number of employee-elected holidays that are a priority to them.

An employee handbook can demonstrate a company’s commitment to employee wellbeing through a policy outlining employer wellness offerings as well as a company’s commitment to corporate responsibility through a policy outlining any time off or match programs provided to employees who pursue charitable endeavors.

Legalization of recreational marijuana

In light of the legalization of recreational marijuana in New Jersey, employers should revisit their drug and drug testing policies. Under New Jersey law, employers may prohibit employees from using, being impaired by, or possessing cannabis in the workplace; however, employers cannot take adverse action against an employee solely because the employee used cannabis off duty.  Thus, private employers not subject to federal regulations dictating otherwise should cease pre-employment and random drug testing for cannabis as they are now required to also have a reasonable suspicion of present impairment along with a positive objective drug test before taking any adverse employment action.

Consensual relationships

Workplace romances are inevitable and can result in legal risk. Protect the company from such liability by implementing personal relationship policies that require employees to maintain clear boundaries between personal and business interactions, including prohibiting employees from engaging in physical contact or other displays of affection that could make other employees feel uncomfortable. Also require employees to disclose workplace romances and enter into a consensual relationship agreement, confirming the voluntary and mutual nature of the relationship. At a minimum, employers should have a policy prohibiting employees from engaging in such relationships with subordinates, and employees who are in a relationship should not be permitted to participate in any decision-making over the other’s terms or conditions of employment.

Ensuring awareness of and compliance with employee handbook

An employee handbook is of little value if your employees do not know where to find it. The handbook should be available electronically, and, to ease use, include hyperlinks, such as links to website to apply for benefits, links to emails for contacts, and links to other related policies.  Having separate, electronic policies, instead of a hardcopy handbook, also makes updating individual policies easier.

• Include fillable forms that can be electronically submitted, such as harassment complaints or accommodation requests.
• Require acknowledgements of policies confirming employee understanding of their terms.
• Provide training on the policies for employees, including supervisor training on consistent application and interpretation of policies and reporting requirements.

It is critical that employee handbooks be reviewed by counsel and updated annually to ensure employers keep up with the evolving workplace and changing laws as well as to set a tone for company culture, fairness and inclusivity.

Melissa A. Salimbene is a member of the firm at Chiesa, Shahinian & Giantomasi, where she practices employment law and commercial litigation. Lindsay A. Dischley is a member of the firm, where she practices employment law and commercial litigation.