Is Your Employee Policy Dead?

What better time than now to see if there are dead, useless or even dangerous provisions lurking in your Employee Policy?  Business owners and executives already know that the employer/employee environment continues to dramatically change.  This is true not just in Texas but throughout the US.

A few areas of change that employers should know about include:

1. NON-COMPETES: Many business owners I meet still believe non-competes are unenforceable.  This is wrong.  In Texas, the law has evolved over the last 10 years and now provides that a non-competition provision will be enforced if it is reasonably tailored as to scope, duration and geography; and otherwise complies with the non-compete statute – Texas Business and Commerce Code Section 15.50.  This means, for example, that your long-time sales executive privy to all kinds of valuable business information can be prevented from immediately jumping ship to the competitor.  There’s been a great deal of case law on this subject in recent years, and nationally non-compete agreements are subject to rather persistent criticism.  As I have written on in the past, many businesses should avoid blanket policy wherein all employees sign non-competes. It’s just not appropriate for all employees. The takeaway here is that Courts, including Courts throughout North Texas, routinely enforce compliant non-compete agreements.  When properly done, the non-compete can be a powerful tool for many businesses.  Don’t be afraid to include in your policy, just be sure to do it right.
2. ARBITRATION: For businesses that have an employee policy or other agreement containing an Arbitration provision, there is a growing divide throughout the country on whether certain arbitration provisions are enforceable.  Particularly, are employer/employee arbitration provisions containing class or collective action waivers enforceable?  This is an increasingly important issue to employer businesses because many legal claims, including minimum wage and OT (or FLSA) claims, have collective action potential.  As this National Law Review article summarizes, the National Labor Relations Board (NLRB) found a few years ago that an arbitration agreement which precluded class or collective actions was an unfair labor practice.  What has followed is a series of conflicting appellate court findings, or split, wherein some have found such arbitration provisions enforceable and others not.  For legal disputes (ie. lawsuits, arbitration) here in Texas, which the Fifth Circuit court of appeals controls, such class or collective action waivers in employer-employee arbitration agreements remain enforceable.  The Supreme Court will likely resolve these conflicting lower court decisions in the not too distant future so stay tuned.
3. CONFIDENTIALITY: Over the last decade, the NLRB has also been active in protecting employees’ free speech rights. Most businesses prevent workers from disclosing trade secrets and other confidential business information, and routinely have policy that restrict what employees can say to co-workers and others outside the company.  However, when the restrictions in the confidentiality policies are too broad, they may violate collective bargaining rights according to the NLRB – aiming to protect an employee’s right to speak to another, whether it be a co-worker or worker employed elsewhere, seeking to enlist support on a matter of shared employee concern. The NLRB has pursued enforcement actions against employers for this violation.  Here is a good article from accountingweb on recent NLRB findings and examples on this subject, emphasizing the intricate policy road employers must carefully follow. The policy (eg. the social media policies of the business) should be specific and thoughtfully tailored, to prohibit disclosure of confidential information of the business such as proprietary customer information, and avoid restrictions on other protected speech of the employees.

As a business attorney, most medium to large employers I see have written policies.  Some comprehensive, some not.  The Employee Policy of any business can be a vital tool used to establish a productive company culture, and set a framework of expectations for workers to understand and follow.  If left unattended to the changes in the law, however, the policy can also become an unenforceable piece of paper that exposes the business to employee litigation or regulatory enforcement.

With all the changes in employment law effecting businesses these days, don’t leave your Employee Policy stranded and forgotten.