#1 | PROHIBITING WAGE DISCUSSIONS (e.g., “Employees are prohibited from
discussing their pay with co-workers.”)
Reason:
Under Section 7 of the NLRA, employees have, among other things, the right to act together to improve wages and working
conditions and to discuss wages, benefits, and other terms and conditions of employment, with or without a union. The National Labor
Relations Board, which enforces the NLRA, and many courts have found that pay secrecy or confidentiality rules violate Section 7.
Additionally, Minnesota currently requires employers who maintain an employee handbook to have a clear policy explaining employees’
rights to disclose their own pay information under Minnesota’s Women’s Economic Security Act (WESA).
Alternatives:
Employers should never take actions or implement policies that could be construed to restrict Section 7 rights under the
NLRA. Instead, employers may want to take steps to better communicate information about their company’s compensation program and
how employees’ salaries and wages are determined.
#2 | BLANKET POLICIES CONCERNING CRIMINAL HISTORY
(e.g., “Our company will not hire anyone with a criminal conviction.”)
Reason: Blanket policies regarding criminal convictions can have a disparate impact on protected classes and may violate
federal, state and local laws. It is strongly recommended that employers follow the Equal Employment Opportunity
Commission’s (EEOC) guidance from April 25, 2012. In the guidance, the EEOC reiterates its position that an employer cannot
simply disregard any applicant who has been convicted of a crime.
Alternatives:
According to the EEOC guidance, employers should evaluate how the specific criminal conduct relates to the duties of a
particular position. This generally requires an individualized assessment in which the employer considers a variety of factors to determine
whether exclusion based on an individual’s criminal record should be applied (such as the facts and circumstances surrounding the offense,
the number of offenses for which the individual was convicted, rehabilitation efforts, and employment or character references).
SMALL BUSINESS HR POLICIES AND PROCEDURES
– Are Yours Up To Date?
It is a best practice for employers to communicate important rules, guidelines and information to employees through written
policies. It is equally important for employers to develop procedures to consistently address workplace issues. While a lack of
policies and procedures can lead to a host of problems, ill-conceived policies can be problematic as well.
The following are 9 policies and procedures that may run contrary to federal, state, or local law, along with acceptable
alternatives where applicable.
Ill-conceived policies and procedures can be problematic, especially when they conflict with federal, state, or local law. When
drafting policies, employers should take into consideration all applicable laws. As these laws change often, employers should
review policies and procedures on a regular basis to ensure compliance.