Law update from Parsons Behle: Is your employee handbook ready for 2024?

The holidays are in full swing, and many human resource professionals are making their lists and checking them twice, working to update their employee handbooks for 2024. If a new employee handbook is on your wish list, here are a handful of important 2023 developments in federal and state employment laws that you may want to keep in mind, supplied by the Salt Lake City office of Parsons Behle & Latimer in its current Employment Law Update:

• In August, the National Labor Relations Board (NLRB) adopted a new, more worker-friendly test for assessing whether a workplace rule violates the National Labor Relations Act (NLRA), reversing an earlier more employer-friendly standard. This decision dramatically changes the legal landscape for employee handbooks. Under the approach outlined by the board in Stericycle, Inc., 372 NLRB No. 113 (2023), a workplace rule is presumed unlawful if a “reasonable employee” could interpret it in a way that limits employee rights under Section 7 of the NLRA. This is true even if there are other ways the rule reasonably can be read that do not limit Section 7 rights. (Section 7 gives non-supervisory employees the right to join together and engage in “protected concerted activity” to improve their terms and conditions of employment, regardless of whether or not they are represented by a union.)

An employer can defend its rule or policy by showing that it is drawn as narrowly as possible to advance a legitimate and substantial business interest. The Stericycle standard creates a heavy burden for employers; it will not be easy to satisfy. Expect the NLRB to scrutinize handbook rules much more strictly, especially (but not limited to) rules on topics like civility and conduct, conflicts of interest, social media, dress codes, confidential information, media relations, no recording, solicitation and complaint procedures. Under the current NLRB, handbooks must be crafted carefully to meet an employer’s business needs while not running afoul of the NLRA. Although many employers whose workers are not unionized mistakenly believe the NLRA does not apply to them, the act applies in both union and non-union settings.

• The Pregnant Workers Fairness Act (PWFA) took effect earlier this year, requiring covered employers to provide reasonable accommodations for a worker’s known limitations due to pregnancy, childbirth or related medical conditions. There is an exception where providing such accommodations would cause “undue hardship.” Examples of possible reasonable accommodations include the ability to sit, the need for more frequent breaks to use the restroom, eat, drink water, the need to park closer, be given unpaid leave, etc. (Note that Utah employers have been required to reasonably accommodate pregnancy, childbirth, breastfeeding and related conditions under state law since 2016.)
  
  
• Paid sick leave (PSL) laws and paid family leave insurance programs have become increasingly common, creating compliance headaches for multi-state employers. Typically, PSL laws contain specific requirements for accrual of leave, permitted uses, notice, recordkeeping, etc. Employers should ensure their handbook policies meet the requirements of all PSL laws that may apply to their employees. One frequent pitfall is that many paid time off policies do not provide leave for part-time workers, whereas most PSL statutes protect all employees. Some cities and counties have enacted their own PSL ordinances, resulting in employers having to navigate both state and local PSL laws.
  
  
• State laws legalizing medical or recreational marijuana may require employers to revise their drug testing policies or hiring procedures.
• EEO protections have been expanded in some states to protect natural hairstyles associated with race. In Colorado, the Protecting Opportunities and Workers’ Rights Act (POWR) expanded the definition of harassment, rejecting the requirement that harassment be “severe or pervasive” to be actionable.
• Other legal trends this year have included laws targeted at non-disclosure agreements, assignments of inventions, non-competes (these have come under fire both from federal agencies and state legislatures), minimum wage increases and pay transparency.

Staying up to date on legal developments and maintaining a compliant employee handbook can be challenging. Employers with questions may wish to consult experienced employment law counsel.