The Trap of Overbroad, Out-of–Date Policies

Troutman, who is a partner in the Houston office of law firm Fisher &Phillips LLP, blogged his threats and traps on Mondaq.com.

[Go here for Traps 1 to 5.]

Trap #6. Overbroad solicitation and distribution policies

This issue is important from both a policy and practice perspective, especially in areas where unions are attempting to organize workers. Employees can be required to limit solicitation activity to non-working times, but blanket or across-the-board prohibitions are unlawful. A good general rule is, “working time is for work.” An employer may prohibit distribution of non-institutional materials in working areas at any time. Besides reviewing policy language, employers must ensure that they are actually doing what their policies say.

The current pro-labor Board is poised to intervene where it believes an employer is overreaching. As employers will receive little or no benefit of the doubt, it is important to ensure these policies and practices are current.

Trap #7. Not keeping your HR policies up-to-date

As in the previous example, it is important to ensure that your HR practices match your policies. Plaintiffs’ attorneys like nothing more than showing that an employer did not follow its own written guidelines. For example, does your policy prohibit gambling in every form, while in practice, employees, including supervisors, actually participate in Super Bowl or March Madness pools? You can help avoid this dilemma by building flexibility into policy language and avoiding rules or prohibitions that are absolute.

On the other hand, policies such as those dealing with the FMLA demand detailed, precise language because regulations require specific communications and actions.

To ensure that policies remain accurate and up-to-date, schedule regular reviews that incorporate input from supervisors who are responsible for day-to-day compliance. It is also vital to remind supervisors of these policies on a systematic basis.

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Trap #8. Failing to keep abreast of new developments

Whatever methods you use, it is critical to follow legal, technological and cultural developments that affect your workforce. Though we do not know what specific changes will come next, there is little doubt that change will continue at a rapid pace, Troutman says.

In HR, if it’s not one thing, it’s another, right? Like FMLA intermittent leave, overtime, ADA accommodation, and sexual harassment, and then whatever the agencies and courts throw our way.

You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:

Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.

E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.

Solicitation. In line with our general nonsolicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.

We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)

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