A recent National Labor Relations Board ruling struck down policies requiring respectful communication in the workplace because enforcement of the policies chills employee rights to discuss the terms and conditions of employment.

Consequently, employers should review their handbooks, workplace rules and other policies on workplace conduct and speech, social media, and use of employee communication systems to ensure their rules are crafted to meet business needs while not chilling employees rights to engage in concerted activities to address the terms and conditions of their employment. In fact, it’s a good time for Colorado employers to review their entire handbooks.
An employer who hasn’t reviewed and updated its employee handbook in the past year could be be out of compliance with Colorado laws.

Here are some other policies that could require review and revision:

Medical leave policies. Many employees may now take leave under the Colorado Family and Medical Leave Insurance (FAMLI) program. FAMLI leave and federal Family and Medical Leave Act leave should run concurrently. Make sure your organization’s FAMLI policy requires the employee to inform the employer when the employee applies for FAMLI leave. Unfortunately, neither FAMLI nor the FMLA require an employee to apply for FAMLI leave when requesting FMLA leave. While it’s questionable whether an employer can enforce a rule requiring the employee to apply for FAMLI leave when requesting FMLA leave, policies should explain carefully what wage replacement is either available or required during FMLA leave and encourage the use of FAMLI to replace income lost during FMLA leave. For more information on coordinating FAMLI with other leave programs, see the FAMLI coordination of benefits rule at https://famli.colorado.gov/proposed/adopted-rules.

Sick leave. The Healthy Families and Workplaces Act (HFWA) allows employees to use accrued sick leave or paid time off (PTO) if the employee uses a PTO plan to meet the requirements of the HFWA for three new reasons: grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after a family member’s death; provide care for a family member whose school or place of care has been closed due to an unexpected event that leads to the closure of the school or place of care, including inclement weather and loss of power, heating or water; and evacuate the employee’s place of residence due to an unexpected event that leads to the need to evacuate, including inclement weather and loss of power, heating or water. Don’t forget to review related policies, too. An employer with a bereavement policy should make sure it’s consistent with the sick or PTO leave policy.

Discrimination, harassment and equal opportunity policies. The Protecting Opportunities and Workers’ Rights (POWR) Act defines harassment as unwelcome conduct directed at an individual or group of individuals in, or perceived to be in, a protected class, which conduct is subjectively offensive to the individual alleging harassment and objectively offensive to members of the same protected class as the individual alleging harassment. A complainant no longer needs to prove harassment is either severe or pervasive. However, “petty slights, minor annoyances and lack of good manners do not constitute harassment” unless under the totality of the circumstances, these behaviors meet the definition of harassment. And the totality of the circumstances includes examination of the duration and type of conduct to which the complainant is exposed.

This change won’t affect most employers’ policies directly. But the POWR Act requires employers to maintain personnel and employment records for at least five years and maintain records related to complaints of discriminatory or unfair employment practices in a designated repository. To defend against a harassment claim, an employer must show it’s established a program reasonably designed to prevent harassment, deter future harassers and protect employees from harassment and the employer has communicated the existence and details of the program to supervisory and nonsupervisory employees.

Therefore, employers should ensure harassment and discrimination reporting policies contain clear directions on how to report harassment and don’t contain requirements discouraging an employee from doing so.

The Employers Council provides employee handbook reviews to consulting and enterprise members as part of membership as well as numerous online resources and templates to all members. Consulting and enterprise members may discuss handbook and policy issues with the council’s human resource professionals and employment attorneys.