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Eight reasons why it's time to update your employee policies

Change in the past year need your attention


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One constant in employment law in recent years has been change. Changes in just the past year necessitate updates to personnel policies as summarized below. If it has been a while since you’ve updated your policies, it may be time for a review.

Employee access to personnel files

Effective now, Colorado employees will gain the right to access their personnel files. Current employees may access their files once a year and former employees once after the termination of their employment. Employers need not produce documents that must be kept in a separate file under federal or state law; records pertaining to confidential reports from previous employers; documents relating to an active criminal investigation, active disciplinary investigation, or active investigation by a regulatory agency; or documents that identify any person who made a confidential accusation against the employee. Policies that are more restrictive will run afoul of the Colorado law.

Anti-discrimination protections for pregnant workers

New anti-discrimination protections for pregnant applicants and employees under Colorado law took effect in August. Employers must provide reasonable accommodations to pregnant applicants and employees to perform the essential functions of the job if the applicant or employee requests accommodation. Employers may not discriminate against pregnant workers who need, request or use reasonable accommodations. For example, policies that provide light duty to employees injured on the job but not to pregnant employees are likely discriminatory. Unlike existing state law and the federal Americans with Disabilities Act which protect individuals with “disabilities,” the new law protects individuals with “conditions related to pregnancy, childbirth, or a related condition” without requiring the conditions be disabling.

Parental leave for academic reasons

Colorado’s law requiring employers to allow employees to take unpaid time off to attend certain academic activities for or with the employee’s child expired in September 2015. While employers may continue to provide such leave, it is not required. Watch for legislative efforts in 2016 to restore this law.

Confidential information

The Defend Trade Secrets Act which became effective last summer gives businesses a federal claim for misappropriation of a trade secret that is related to products or services in interstate commerce. However, the Act immunizes individuals from criminal/civil liability if they disclose a trade secret to a government official or to an attorney and if the disclosure is made for the purpose of reporting a violation of law. The Act requires employers to inform employees of the Act’s immunity provision in “any contract or agreement with an employee that governs the use of a trade secret or other confidential information.” The possible consequence of not including an immunity provision is an inability to recover exemplary damages or attorney fees in an action under the Act.

Employment policies that restrict employee activity

The National Labor Relations Board has increasingly reviewed the policies of unionized and nonunionized employers for violations of Section 7 of the National Labor Relations Act. Section 7 protects the rights of employees to join together to improve their wages and working conditions. Policies may violate Section 7 on their face or as applied. The NLRB has construed many common policies as violating Section 7 rights, especially policies that impose limits on employees related to confidentiality; social media use; employee conduct; the use of company logos, copyrights and trademarks; communications with media and other third parties; photography and recording; restrictions on employees leaving work, and even employment at will status.

Post-accident drug testing

Under OSHA’s new drug testing and anti-retaliation rule, blanket post-accident drug testing policies will likely be considered illegal. Testing is permissible if the employer has an objectively reasonable basis that an impairment due to drugs or alcohol likely led to the accident and if the drug test to be used will determine whether the employee was impaired at the time of the incident or injury. The rule took effect December 1, 2016 and applies to employers in all states where the government enforces the Occupational Safety and Health Act.

Safety incentive programs

Also under OSHA’s new rule, an employer’s internal procedures for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting. OSHA views policies that discipline employees for failing to “immediately” report injuries and illnesses as discouraging employees from reporting.

Reporting workplace injuries and illnesses

The third key provision of OSHA’s new rule provides that employers may not award incentives based on the number of injuries or illnesses that are reported or occur during a certain period of time (e.g., a cash prize raffle if no recordable injuries take place) because such practices may deter the reporting of such incidents.

Violations of the new rule can result in citations by OSHA and, at the same time, retaliation complaints filed by current or former employees.

This article provides an overview of specific legal developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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Sue Schaecher

Sue Schaecher is a partner in the Denver office of Fisher & Phillips LLP, representing employers nationally in labor, employment, civil rights, employee benefits and immigration matters. Contact her at sschaecher@laborlawyers.com or 303.218.3650

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