ILMA Compoundings – January 2019 - 29

workplace, insubordination, disruptive
behavior, confidentiality, disparagement and conflicts of interest.
Let me turn to some other issues
that suggest it make sense to start off
2019 with a review of your employee
handbooks. I have written previously
in this column about the #MeToo
movement and its effects on equal
employment opportunity, sexual
harassment, gender discrimination and
retaliation in the workplace. As part of

Many companies are feeling financial
pain from failing to comply with federal
and state data privacy laws."
an employee handbook review, carefully
analyze your existing policies on these
subjects, paying particular attention to
complaint and investigation procedures. Remember that harassment
policies should include prohibitions
against harassment based on any legally
protected category, not just sexual
harassment. Properly worded policies
can be used as a defense.
Data privacy, protecting sensitive consumer information and notices of data
breaches seem to be in the news on a
daily basis. Many companies are feeling
financial pain from failing to comply
with federal and state data privacy laws.
Last year, we saw the implementation
of the European Union's General Data
Protection Regulation, and California is
moving forward with a similar program.
Employers, therefore, should scrutinize
their existing privacy rules in their
employee handbooks, as well as on
their public websites, to ensure ongoing
compliance.
Most employers include an at-will
policy in their employee handbooks to
reinforce that a worker's employment
may be terminated at any time for any
lawful reason. In addition, employers
use the at-will policy to clarify that an
employee handbook is not a contract
and that employers may revise their
policies at any time and without prior
notice. Where problems often creep
in - anywhere lawyers have healthy
and costly debates - is superfluous
language in employee handbooks that

creates potential promises to employees
that become estoppel arguments against
the employer in court. For example,
an employer may not be subject to the
federal Family and Medical Leave Act,
but it makes statements about extended
personal leave. Similarly, unnecessary purpose statements, rigid and progressive
disciplinary steps, and commitments to
provide training or a mutually enjoyable
work environment can expose employers
to potential liability.
When onboarding a new employee,
it is pretty standard for the individual
to acknowledge in writing that he or
she has received a copy of the employee
handbook. Employers should obtain
similar acknowledgments each time
they update their handbooks. Besides
reiterating one more time the employer's at-will and discipline policies, the
new acknowledgement can be used to
instruct employees to raise any complaints or questions about the revised
employee handbook or specific policies.
As always, I suggest the periodic
review of employee handbooks be
done with the assistance of corporate
counsel. Having that additional,
critical eye is very important in minimizing problems and liability. My best
for a prosperous 2019.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.

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ILMA Compoundings – January 2019

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