Now that we are all back from another wonderful WVADA Annual Convention and have heard so many motivational speakers, it is my task to bring us back to the reality of the day-to-day legal challenges that we face and provide guidance to avoid. My apologies. In the edition of Counselor’s Corner, I wish to turn our focus away from consumer and governmental exposures and direct our attention to making sure that our employment policies are in place and up to date.
It is a best practice that handbooks be reviewed approximately every two to three years to make sure that they are meeting current legal requirements and updates. For example, there are new laws concerning pregnancy discrimination and accommodations and other National Labor Relations Board rulings addressing non-compete provisions and non-disparagement clauses.
If you do not have a handbook or employee policies and procedures, I strongly recommend that you have one drafted by an experienced employment law attorney. These handbooks do not have to be long, lengthy or detail step-by-step actions for every minute action that occurs in the workplace. They should be a balance of providing information to an employee about company benefits and leave, employer expectations and standards of conduct, yet provide employers sufficient flexibility in deciding specific employee issues.
Handbooks for dealerships are slightly unique given the nature of the business, but need to address common topics required of most West Virginia employers. Specifically, a handbook should address the nature of employment, full- or part-time, at-will status, how employees are paid, benefits, vacation or sick days, drug testing policies, anti-discrimination policies, sexual-harassment handling procedures and retaliation, and other protected leaves. In addition, a handbook should clearly articulate employer expectations concerning standards of conduct and disciplinary procedures within the business. An employee handbook might also address leave issues for jury duty, bereavement and voting.
Your handbook may or may not need to address the significant issue of the Family Medical Leave Act depending upon its size and proximity of other stores within your ownership. This is something that needs to be evaluated.
Handbooks for dealerships do have some unique policies. This can include driving company motor vehicles and employee discounts related to service and parts and should address the acceptance of gifts or rewards from vendors. They should also clearly state that honesty is required in dealing with consumers.
In recent years, West Virginia has specifically addressed employees having guns on company property, payment of paychecks at time of separation, the employee’s responsibility to return employer property, and the impact on unemployment and worker’s compensation when an employee is injured while being under the influence of drugs or alcohol. I encourage you to take the time to make sure that your handbook addresses these new statutory requirements. Another challenge is how to deal with the presence of medical marijuana and how it impacts your drug testing policies and the interaction with the Americans with Disabilities Act and the West Virginia Human Rights Act.
Some recent federal opinions and laws have come into effect, establishing specific rights for pregnant workers. Also, a recent National Labor Relations Board decision prohibits the use of non-compete and non-disparagement provisions with an employee at the time of separation. While it is not the purpose of this article to explain the details of these new laws and opinions, please understand that these considerations should be addressed by counsel reviewing your handbook.
Importantly, a handbook should be drafted to accommodate and recognize your dealership’s culture and managerial style. While employment laws can require very specific employee rights, on the other hand, there are many areas where an employer can have and maintain significant flexibility.
To close, please be careful about the old adage, “We’ve always done it this way.” I promise you, this is not a legal defense. Please take the time to periodically review and update your handbook.
As always, the association and I are available to assist with any questions you may have and in preparing a handbook. Have a great summer.
