Employee handbooks provide a detailed summary of the employer’s workplace policies, procedures, and human resources objectives. They are frequently a new employee’s first introduction to the organization’s values, culture, expectations, and objectives. Up-to-date employee handbooks are also an essential piece to an employer’s toolkit for complying with federal, state, and local labor and employment laws.
Although some laws only apply to employers with 15 or more employees, many labor and employment laws, including the anti-sexual harassment provisions of the Arizona Civil Rights Act, apply to employers with only a single employee. Legally compliant handbooks can play a critical role in a company’s defense against legal claims brought by a former or current employee. In a number of circumstances, a well-drafted employee handbook with current and legally compliant anti-discrimination policies, including compliant reporting, investigation, and anti-retaliation provisions, can give rise to specific affirmative defenses against claims by employees. For instance, a legally compliant anti-harassment policy may provide an affirmative defense against certain harassment claims when (1) the employer also has other sufficient safeguards in place to prevent workplace discrimination and harassment (including annual training), and (2) the employee files a claim without first reporting the alleged conduct to the employer and allowing it an opportunity to investigate and take remedial action if needed. Compliant policies can also provide a safe harbor against certain statutory claims. The Arizona drug-testing statutes, for example, provide a safe-harbor from litigation so long as the employer has a drug-testing policy that meets the statute’s detailed provisions on testing.
Unfortunately, employee handbooks and workplace policies that are not in compliance with current labor and employment laws create a significant risk of liability to a company. In those cases, employers are taking a considerable gamble that non-compliant workplace policies will operate as a weapon in the hands of a disgruntled current or former employee in an agency action or lawsuit. Indeed, unlawful employment policies are often viewed by courts and agencies as evidence of a legal violation. It is not uncommon for courts and agencies (such as the Equal Employment Opportunity Commission and the National Labor Relations Board) to make a determination that an employer committed an unfair labor practice or other legal violation just by having an out-of-compliance policy, regardless of whether it is currently being enforced.
To complicate matters, each year usually brings a multitude of changes to federal, state, and local employment laws that could put a handbook and other workplace policies in legal violation. In 2022 alone, new federal and state laws included those governing wage and hour issues (such as minimum wage and worker misclassification), COVID-19 safety protocol, paid leave requirements, and anti-discrimination protections (such as some jurisdictions’ newly prohibition against discrimination based on an employee’s natural hairstyle or medical marijuana use). Of course, those employers with employees in multiple jurisdictions must pay particular attention to the differences in state and local laws, being mindful that when it comes to multi-state handbooks, one size does not fit all. Policies that are legally permitted in one state may be unlawful in another state. The employment law provisions in Arizona’s Medical Marijuana Act would render the vast majority of zero-tolerance drug and alcohol policies unlawful under Arizona law.
Thus, given the ever-changing landscape of federal, state, and local labor and employment laws, it is imperative that all employers review and update their employee handbooks and other workplace policies at least annually. In addition to its regular annual review of employee handbooks, an employer should also take immediate steps to update its workplace policies in the event of changes in the law or the employer’s circumstances.
If you have questions regarding employee handbooks, workplace policies, or any other employment law issues, please contact any member of Rusing Lopez & Lizardi. Charitie Hartsig leads the firm’s labor and employment practice and can be reached at (480) 626-1391 or chartsig@rllaz.com.