A. EMPLOYER POLICY REQUIREMENTS
US employers adopt and utilize personnel policies, both required and recommended, to facilitate employment relationships. Most often, an employee handbook sets forth these policies. Well-drafted employer policies serve as defense mechanisms for employers to prevent and minimize employment law liabilities.
Key Required and Recommended Employer Policies Include:
- “At-Will” Employment. As most employment relationships in the US are “at-will”, employers should implement a clear and unequivocal policy that informs employees of their “at-will” status at the time of hiring.
- Equal Employment Opportunity Policy. All employees should be judged on their merits and not on such factors as sex, age, national origin, religion, disability, or other legally protected categories under federal, state or local laws.
- Anti-Harassment Policy and Complaint Procedure. The Equal Employment Opportunity Commission (EEOC), some local statutes, and court decisions provide guidance on implementing an anti-harassment policy and complaint procedure and emphasize that such policy should be widely disseminated and rigorously enforced.
- Reasonable Accommodation Policy. Employers are required to provide “reasonable accommodation” to persons with disabilities unless such accommodation would pose an undue hardship to the business or pose a direct threat to the health and safety of employees.
- Religious Accommodation. Employers have an affirmative obligation to accommodate the religious observances of employees unless it would pose an undue hardship to the business.
- Leave Policies. Federal and state laws cover several types of leave of absence rights, in particular family and medical leave.
- Confidentiality Policy. Employers should identify business data, strategy, and other workplace information deemed confidential and require employees to treat this information on a confidential basis and not share with unauthorized parties.
- Ethics Policy. An ethics policy provides employers with discretion to discipline employees whose behavior is damaging to the company’s reputation.
B. EMPLOYEE TRAINING REQUIREMENTS
• Federal Training Requirements.
Although under federal law no training requirements apply universally to all to employers, certain laws and agency regulations apply to specific types of employers or industries. For example, there are federal training requirements for positions involving safety of the public (FAA, DOT), safety sensitive occupations (OSHA), and certain categories of public-sector employees. Also, under the Health Insurance Portability and Accountability Act (HIPPA), health industry employers are required to train “as necessary and appropriate for the members of the workforce to carry out functions within the covered entity”.
• State Training Requirements.
There are some state laws that include employer training requirements. For example, some states require all employers to provide sexual harassment training. There may also be employer obligations to ensure training is provided in certain licensed occupations, such as in licensed child care facilities.
• Establishing a Compliance Program.
Although training is typically not mandated per se, under various federal and state laws training is suggested as part of an effective compliance program. For example, in the corporate context, the Sarbanes-Oxley Act includes business ethics training obligations.
• Establishing an Affirmative Defense.
Training may also be used to establish an affirmative defense. This is applicable to several employment-related laws, but is most common in the context of nondiscrimination training under Title VII.
C. EMPLOYMENT AGREEMENTS
Under US law, there are no minimum requirements for an employment contract. Also, in most states, no written memorialization of any terms is required. An employment relationship in the United States is presumed to be “at-will,” i.e., terminable by either party, with or without cause or notice. Indeed, a majority of employees in the US are employed on an “at-will” basis, without a written employment contract, and only with a written offer of employment that outlines the basic terms and conditions of their employment. In most states, there are no requirements as to the minimum contents of an offer letter. In some states, such as New York, employers must by law notify employees in writing of some of the terms of employment (but not as extensive as is required under the law of EU Member countries). Highly-skilled and compensated employees (e.g., high-level executives) are traditionally employed pursuant to written employment contracts. These contracts specify the basic terms and conditions of employment, such as position, job responsibilities, salary, compensation, incentive pay, and stock options. These also define what conduct will justify termination for cause and provide for severance pay in case of termination without cause.
Whether the employment relationship is “at-will” or pursuant to a written employment contract, parties are free to negotiate and set the terms and conditions of their relationship, so long as none of the provisions violate any federal, state or local law, rules or regulations governing the employment relationship (e.g., the pay practices established in the Fair Labor Standards Act, the prohibition of discrimination under the federal Civil Rights Act of 1964, and the like).