Keeping Policies Current, Even When They’re Not Clear

By Steve Taylor Jan 2, 2009
A new year, a new administration and a new Congress will be keeping employee relations professionals on their toes in early 2009. “There’s a ton going on,” says Maurice Baskin, who advises management clients in employment matters for the Venable law firm in Washington, D.C. “You’ve heard of transformational change?” he asks. “The labor and employment field is about to undergo such a change.”

“We’re holding our breath,” agrees Darren Reed, PHR, a member of the Society for Human Resource Management (SHRM) Employee Relations Special Expertise Panel, who says that policy and employee handbook updates are complicated by regulations not yet spelled out and by laws that might be passed by the 111th Congress and signed by the nation’s 44th president, Barack Obama.

In the case of the Americans with Disabilities Act (ADA), for example, the enacted change has outrun the regulations. The last Congress expanded the act to increase the number of people counted as having ADA-covered disabilities. Those changes take effect with the New Year, but a politically divided Equal Employment Opportunity Commission has been unable to finalize the required revisions to its rules. “Proposed regulations are still being deliberated,” according to EEOC spokesman David Grinberg.

So what is an employee relations professional supposed to do in the meantime?

Stay on top of it, according to Linda Harber, the assistant vice president for human relations at George Mason University (GMU) in Fairfax, Va. “We’re working with our Office of Equity and Diversity Services to make sure everyone is aware of the changes and the institution stays compliant.”

Experts suggest keeping an eye on a few specific changes.

Family and Medical Leave Act

In response to several court challenges and because of the pressure of the Iraq and Afghanistan conflicts, the U.S. Department of Labor (DOL) puts into effect some new FMLA entitlements for military families effective Jan. 16, 2009. According to the DOL web site, the changes provide:

  • Up to 26 weeks of leave in a single 12-month period to care for a covered service member recovering from a serious injury or illness incurred in the line of duty on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave during the single 12-month period.
  • Up to 12 weeks of leave for certain qualifying exigencies arising out of a covered military member's active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation.

“Qualifying exigencies” include deployments on short notice, child care and school activities and six other potential difficulties related to military service.

Labor and employment attorney Cheryl Behymer of Fisher & Phillips in Columbia, S.C., points out that the FMLA’s notice requirements are changing, too, as well as several other important technical regulations. With the new year, “Employers definitely need to review their leave policies to make sure they’re in compliance,” Behymer advises. At GMU, Linda Harber says, “We’re correcting our web site so people know FMLA has been expanded.”


Starting Jan. 15, 2009, a rule from the Department of Homeland Security will require that federal contractors and subcontractors verify the employment eligibility and Social Security status of their workers using the government’s E-Verify database. Use of the electronic system has been voluntary, but an executive order signed by President Bush in 2008 would make it mandatory for the contractors.

SHRM and four other organizations filed suit in federal court to block the new rule, claiming that E-Verify is not reliable and that Congress, not DHS, has the authority to mandate its use.

Despite the challenge, the requirement “is being thrown at SHRM members,” says Maurice Baskin, “So they need to be aware of it.”

For universities receiving federal sponsorship of research, the requirement presents a special challenge. “Talk about something hard to decipher,” says Harber at GMU, who explains that it’s unclear when or whether the new rules count recipients of federal research grants as contractors. “As the law rolls out,” she says, “I think things are going to change with it.”

President Obama

What changes might be coming from the incoming Democratic president? Maurice Baskin says, “The organized labor agenda is likely to have an impact on the hiring power of employers.”

An example might be the Employee Free Choice Act, which would allow the National Labor Relations Board to certify a bargaining representative without a secret ballot election if a majority of employees approve it using a card check system. The measure was blocked by a Senate filibuster in 2007 but likely will be reintroduced in 2009. “Signs are that if it does pass, Obama would sign it into law,” says Darren Reed. “He has obligations to unions.”

Behymer counsels that if the act passes, employers won’t have as much time to explain to their employees why they wish to remain union-free. “If you don’t have a [written] policy in your handbook, you want to think about including one.”

Baskin foresees possible transformations of occupational safety and anti-discrimination regulations in the new Congress. Reed predicts that the Employment Non-Discrimination Act, outlawing discrimination based on sexual orientation, will become law in the next year or two.

Reed sees a “big push” for paid sick and paternity/maternity leave. “This one,” he says, “is probably not as likely to pass, but it has a lot of support from the Democratic side.”


Dawn Adams, PHR, owner of HResults in Hartland, Wis., counsels clients about keeping employee handbooks current. “We update them and put a revision date on them,” says Adams, a member of SHRM’s Employee Relations Special Expertise Panel, “so if someone asks, ‘What were you doing three years ago?’ we can answer.”

Reed advocates keeping employee handbooks on a company intranet. “Just 10 years ago, we would have printed new manuals for over 20,000 employees” for a year with as many changes as 2009.Now, “We send an e-mail with a link to a page that highlights the changes,” he says.

Steve Taylor is a freelance writer based in Arlington, Va.


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