Are there questions or topics we should avoid during the hiring process? How can we be sure we don’t accidentally get into one of those topics?

Absolutely, there are certain topics and questions that should be strictly avoided during the hiring process to ensure legal compliance and create a fair and inclusive experience for all candidates.  It's crucial to focus solely on a candidate's qualifications, skills, and experience as they relate to the job requirements.

Here's a breakdown of topics to avoid and why:

• Protected Characteristics:  Federal and state laws prohibit discrimination based on protected characteristics. These include:

  • Race, color, national origin, ethnicity, ancestry: Avoid any questions about these topics, including inquiries about birthplace, language spoken at home, or the origin of a name.

  • Religion: Do not ask about religious beliefs, practices, or affiliations. This includes questions about holidays observed or places of worship.

  • Sex, gender identity, sexual orientation: Avoid questions about a candidate's gender, sexual orientation, or gender identity.

  • Age, date of birth: Focus on whether the candidate meets any age requirements for the job, but avoid asking their specific age or birthdate.

  • Disability: Do not inquire about a candidate's disabilities or medical history. You can ask if they can perform the essential functions of the job with or without reasonable accommodation.

  • Marital status, family status, pregnancy: Avoid questions about marital status, children, or family planning.

  • Genetic information: Do not ask about genetic information or family medical history.

  • Citizenship status: You can ask if the candidate is legally authorized to work in the United States, but avoid questions about their specific citizenship status.

  • Military service: While you can ask about relevant military experience, avoid questions about the type of discharge they received.

• Other Potentially Problematic Topics:

  • Arrest record: Inquiries about arrests should generally be avoided, as they may disproportionately impact certain protected groups. Focus on convictions that are directly relevant to the job.

  • Salary history: Many states and localities restrict or prohibit questions about salary history.

  • Social media: Avoid asking candidates to connect with you on social media or requesting access to their profiles.

How to Stay on Track:

• Focus on the job description: Prepare interview questions that are directly related to the skills, experience, and qualifications outlined in the job description.

• Train your hiring team: Ensure everyone involved in the hiring process understands these guidelines and the importance of avoiding discriminatory questions.

• Use standardized questions: Develop a standard set of interview questions to ensure consistency and reduce the risk of bias.

• Be mindful of unconscious bias: Be aware that unconscious biases can influence your questions and perceptions. Take steps to mitigate these biases.

• Document everything: Keep records of your interview questions and the candidate's responses.

If a Candidate Brings Up a Protected Characteristic:

• Redirect the conversation: Politely steer the conversation back to the job requirements and the candidate's qualifications.

• Don't make assumptions: Avoid making assumptions about the candidate based on their disclosure.

• Focus on their abilities: Evaluate the candidate based on their skills and experience, not their membership in a protected group.

Can we tell employees not to discuss politics at work?

You can limit political speech and associated conduct that are not work-related—provided you don’t infringe on protected Section 7 rights or applicable state laws. Section 7 of the National Labor Relations Act gives non-supervisory employees the right to talk about the terms and conditions of their employment and the right to unionize. While this law protects some political activities, it doesn’t give employees the right to discuss politics during work hours unless they have an impact on the terms and conditions of their employment. 

That said, we recommend focusing on the effects these discussions might be having on job performance rather than on the specific topic of conversation. If an employee spends too much time engaged in chit-chat, regardless of the topic, they’re probably not performing their best. If nothing else, they’re distracting others. 

You’re also certainly welcome to tell employees that all conversations should be held with indoor voices and that non-work-related topics should be reserved for break areas where they won’t be distracting those who need to focus.

Can we tell employees not to talk about their pay with each other?

Generally, no. The National Labor Relations Act (NLRA) grants all non-supervisory employees (not just those in unions) the right to organize and engage in “concerted activity” for the purpose of mutual aid or protection. Concerted means “in concert,” meaning more than one employee is involved. Activities for mutual aid and protection could include discussions about wages, benefits, treatment from managers, safety issues, and just about anything else that two or more employees might have a stake in. As a result, the protections provided by the NLRA are broad. Here are a few examples of protected activity:

• Employees discussing their pay, whether via email, break room chat, or social media

• Employees circulating a petition asking for better hours

• Employees refusing to work in unsafe conditions

• Employees joining with coworkers to talk directly to the employer, a government agency, or the media about problems in the workplace

While the NLRA doesn’t protect supervisory employees in this way, employers should be careful about who they classify as supervisory. Only those who have real authority will be exempt from the NLRA’s protections—an assistant manager or shift manager, for example, would in many cases not qualify as supervisory.

Note that a number of states have enacted pay equity or pay transparency laws that protect all employees’ ability to discuss their wages—even those in the C-suite. Under these laws, you wouldn’t be able to enforce wage confidentiality policies, even for supervisors.

If an employee hasn’t submitted their timesheet before we run payroll, can we delay paying them until they do?

No, you shouldn’t wait to pay the employee. Under the Fair Labor Standards Act, wages are due on the regular payday for the pay period covered, regardless of whether the employee met your deadline for submitting their timesheet. Ultimately, the responsibility to track and pay for all hours worked falls on you, not the employee. You should ask the employee how many hours they worked and pay them accordingly. If they’re unavailable to answer that question, you should take your best guess—corrections can be made later if necessary.

While you can’t delay payment, you can, and should, address the behavior through disciplinary action when warranted. (If the timesheet was late because the employee was hospitalized, discipline would not be the right approach.)

We have remote and on-site employees. Do we have to post hard copies of required labor posters in the workplace, or can we provide only electronic ones on our internal web page for all employees to see?

As you have remote and on-site employees, we recommend doing both. In December 2020, the Department of Labor issued Field Assistance Bulletin 2020-07, which permits businesses to share the poster information electronically as a supplement to the requirement to post hard copies. Electronic posting is only allowed as a substitute for physical posters if the following conditions are met:

1. All the employer’s employees exclusively work remotely;

2. All employees customarily receive information from the employer via electronic means; and

3. All employees always have readily available access to the electronic posting.

Note that electronic posting of required labor posters must be as effective as on-site posting. They should be readily accessible without employees needing to ask for permission to view them or where to find them. We recommend sharing in a location where remote employees typically receive other legal notices and important information from your organization.

An employee refuses to sign the Employee Handbook. What should we do?

Start with a conversation to understand the employee’s concerns. It’s possible they believe their signing the handbook means they agree with everything in it. Make sure to explain that their signature only acknowledges that they’ve read and understood it.

If that doesn’t resolve the issue, make it clear that failure to sign the handbook doesn’t mean they’re exempt from the policies and procedures within it. Explain that all employees are expected to adhere to the same rules, regardless of whether they’ve signed the handbook.

Document that the employee refused to sign the handbook and that you made it clear that they’re still expected follow your organization’s policies. You can do this directly on their handbook acknowledgment form.

We’ve received complaints about an employee’s hygiene. What should we do?

It's essential to address hygiene concerns promptly and with sensitivity. Here's a step-by-step approach:

1. Documentation: Before speaking with the employee, document specific instances of the hygiene issue. Include dates, times, and objective descriptions of the problem. This documentation will be crucial if further action becomes necessary.

2. Private Conversation:  Meet with the employee privately, ensuring confidentiality and respect. Choose a time towards the end of the workday to minimize any potential embarrassment.

3. Direct and Empathetic Approach: Begin by expressing your concern for the employee's well-being and professional image. Clearly and specifically describe the hygiene issue, referencing your documentation. For example, instead of saying "You smell bad," say "I've noticed a strong odor on several occasions this week, specifically on [dates]."

4. Focus on Impact: Explain how the hygiene issue is affecting the workplace. This might include:

• • Discomfort to coworkers: "Some colleagues have expressed discomfort working in close proximity."

  • Professional image: "Clients or customers may perceive this negatively, impacting our business."

  • Company policy: "This also falls under our company's policy on maintaining a professional appearance and work environment."

5. Active Listening: Allow the employee to respond and share any underlying reasons for the issue. Listen without judgment and be prepared to offer support or resources if appropriate.

6. Possible Causes and Accommodations: Be mindful that the hygiene issue might stem from a medical condition, disability, cultural practice, or personal hardship. If the employee discloses such a reason, engage in an interactive process to explore potential accommodations. This may involve:

• • Flexible scheduling: Allowing for extra breaks to freshen up.

  • Workplace adjustments: Providing a private workspace or access to necessary facilities.

  • Resources and support: Offering information about relevant support programs or employee assistance programs.

7. Follow Up:  After the conversation, document the discussion and any agreed-upon actions. If the issue persists despite your efforts, you may need to escalate the matter according to your company's disciplinary procedures.

Important Considerations:

• Avoid assumptions: Don't speculate about the cause of the hygiene issue.

• Don't offer personal advice: Refrain from giving specific hygiene suggestions unless the employee requests them.

• Maintain confidentiality: Respect the employee's privacy and share information about the situation only with those who have a legitimate need to know.

By following these guidelines, you can address hygiene concerns professionally and respectfully while ensuring a comfortable and productive work environment for everyone.

What can we do about an employee who is taking too many restroom breaks?

It's essential to address concerns about an employee's restroom breaks with sensitivity and respect for their privacy while ensuring productivity and workplace efficiency. Here's a revised approach:

1. Focus on Performance, Not Restroom Time:

• • Evaluate Productivity: Begin by objectively assessing the employee's overall performance, task completion, and work quality. Are they meeting deadlines and expectations? If their work is satisfactory and there are no coverage issues, there might be no need to address the restroom breaks.

  • Consider Workload: Is the employee's workload reasonable? Excessive workload can sometimes lead to more frequent breaks. Ensure tasks are distributed fairly and the employee has adequate resources to manage their responsibilities.

2. Initiate a Private and Respectful Conversation:

• • Express Concerns: If productivity or coverage is genuinely affected, schedule a private meeting with the employee. Express your concerns objectively, focusing on the impact on work rather than the breaks themselves. For example, "I've noticed that you've been away from your workstation frequently, and it's causing some delays in project completion."

  • Active Listening: Encourage the employee to share any underlying reasons for the frequent breaks. Listen attentively and without judgment. They might be dealing with a medical condition, personal stress, or other factors affecting their needs.

3. Be Mindful of Legal Considerations:

• • OSHA Regulations: The Occupational Safety and Health Act mandates that employees have reasonable access to restrooms. Avoid imposing unreasonable restrictions on restroom use, as this could lead to legal issues.

  • Pregnant Workers Fairness Act: If the employee is pregnant or has a pregnancy-related condition, provide additional restroom breaks without requiring documentation. This is a legal requirement, and exceptions are rare.

  • Americans with Disabilities Act (ADA): If the employee discloses a medical condition that qualifies as a disability under the ADA, engage in an interactive process to determine reasonable accommodations. This might include more frequent or longer restroom breaks, unless it causes undue hardship for the business.

4. Collaborative Problem-Solving:

• • Jointly Explore Solutions: If the employee's restroom use is impacting work, and there are no underlying medical or legal considerations, work together to find solutions. This could involve adjusting work schedules, redistributing tasks, or providing strategies for better time management.

  • Document Concerns and Agreements: Keep records of the conversation, any agreed-upon solutions, and any follow-up actions. This documentation can be essential for addressing future concerns or potential performance issues.

5. Sensitivity and Confidentiality:

• • Maintain Privacy: Treat any information shared by the employee with the utmost confidentiality. Avoid discussing the situation with other employees or creating an environment where the employee feels judged or uncomfortable.

  • Respectful Communication: Throughout the process, maintain a respectful and supportive tone. Emphasize your concern for their well-being and your commitment to finding a solution that works for both the employee and the company.

Does taking FMLA intermittently affect an employee’s full-time status or eligibility for health benefits?

No, taking FMLA intermittently does not affect an employee's full-time status or eligibility for health benefits.

The Family and Medical Leave Act (FMLA) provides job-protected, unpaid leave for eligible employees for specific family and medical reasons.  Importantly, it mandates that employers maintain employees' health benefits during FMLA leave, whether the leave is taken continuously or intermittently.

Here's a breakdown of how FMLA protects your benefits and job status:

• Health Benefits: Your employer must continue your health insurance coverage as if you were actively working. This includes:

  • Same Coverage: The level of coverage (e.g., employee only, employee and family) and benefits (medical, dental, vision) must remain the same.

  • Same Cost: Your share of the premium costs should not increase due to FMLA leave. You'll typically continue to pay your portion through payroll deductions or by making direct payments to your employer.

• Full-Time Status: Taking intermittent FMLA leave does not change your employment status. You remain a full-time employee with all the associated rights and responsibilities.

• Job Protection:  When your FMLA leave ends, you have the right to return to your same job or an equivalent position with the same pay, benefits, and working conditions.

Important Note: While FMLA protects your job and health benefits, it's crucial to understand your employer's specific policies regarding FMLA leave, including how to request leave and any required documentation.

We have an exempt employee who is going to be working part-time hours indefinitely. Do we need to switch them to hourly nonexempt or can we simply reduce their salary while keeping them exempt?

You don’t necessarily need to change their classification, but the minimum salary for exempt employees—which will be determined by federal or state law—cannot be prorated based on the number of hours worked. This means you can only keep the employee as exempt if, after the salary reduction, they still make at least the applicable minimum salary. If their new pay is below the minimum for exemption, you’ll need to reclassify them as nonexempt and pay them based on the number of hours they work.

When can we deduct from an exempt employee’s pay?

In general, if an exempt employee performs any work during the workweek, you must pay them their full salary for that week. Deductions are allowed, however, for legally required withholdings and benefit elections.

There are a handful of other situations in which a deduction from an exempt employee’s salary would be permissible under federal law:

• For any workweek in which the employee performs no work, including answering emails, texts, or phone calls.

• In the initial or final week of employment based on the number of hours worked.

• For absences of one or more full days for personal reasons other than sickness or disability.

• For absences of one or more full days due to sickness or disability, if the deduction is made in accordance with a bona fide paid sick leave plan (the Department of Labor has previously said that a plan offering at least five paid days off for sickness qualifies as bona fide).

• To offset amounts the employee receives from jury or witness fees or for military pay.

• For penalties imposed in good faith for infractions of safety rules of major significance, in accordance with a clearly established workplace policy.

• For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.

• For leave taken under the Family and Medical Leave Act.

This is a complete list of allowable deductions, so if none of these situations apply, an exempt employee needs to receive their full salary for the workweek, regardless of the number of days or hours worked.

Do we need to pay interns?

Generally, yes, though it depends on who benefits most from their work.

The U.S. Department of Labor (DOL) has adopted the “primary beneficiary test” to determine whether a worker is an employee (who must be paid in accordance with federal wage and hour law) or can be classified as an unpaid intern (a non-employee who is exempt from federal wage and hour law). If the worker is the primary beneficiary of the arrangement—as opposed to the employer—they can be classified as an unpaid intern. If the employer is the primary beneficiary, the worker must be classified as an employee and must be paid minimum wage and overtime under the Fair Labor Standards Act.

To determine who the primary beneficiary is, consider the extent to which:

• The internship provides training that would be similar to what would be given in an educational environment, including clinical and other hands-on training provided by educational institutions.

• The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

• The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

• The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

• The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

• The intern and the employer understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee.

• The intern and the employer understand that the internship is conducted without entitlement to a paid job at the end of the internship.

According to the DOL, the test is flexible, and no single factor will necessarily tip the scales. But as a practical matter, if having summer interns is saving your company money or the interns aren’t receiving some kind of academic credit, you should think very hard about classifying them as non-employees.

If you’re not sure whether the worker should be classified as an unpaid intern or paid employee, the safer option would be to classify them as an employee. Misclassification can be costly. And as is always the case, you should check state law for any additional requirements.

If an employee runs out of paid time off, do we have to allow them to take unpaid time off?

It depends on why your employee needs the unpaid time off and what you’ve done in the past.

In some situations, such as those that would be covered by the Family and Medical Leave Act, Americans with Disabilities Act, Pregnant Workers Fairness Act, or a similar state law, the employee may be legally entitled to unpaid leave. In those cases, you would need to approve the unpaid leave at least to the extent required by the applicable laws.

In the absence of any legal requirements, if you’ve historically granted similarly situated employees unpaid time off, you should continue to do so. Inconsistency can lead to discrimination claims. (You can make a permanent change in policy and stop granting unpaid time off when it’s not required by law, but that’s the kind of policy shift you’d want to share widely, and if possible, with some advance notice.) If neither of the above situations apply, you could deny a request for unpaid time off, but be sure to let the employee know why. People appreciate transparency, especially when being told “no.”

An employee called out a few days ago by leaving a message with some vague information about being ill and hasn’t followed up since. Can we consider this a voluntary resignation and start the termination process?

Most likely not. There are many reasons why your employee might not have been in contact since leaving the original message, and since they mentioned illness, there’s a good chance their absence is protected by law. Potential protections come from the federal Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA), state-level family and medical leaves and disability protections, state or local sick leave laws, and state-paid leave programs that come with job protections.

Even if you have a job abandonment policy that says an employee will be treated as having voluntarily resigned after a certain number of days, this is not the time to use it. Since you know the absence started with a reason that may have protections and you did receive a call on the first day, it will be safest to hold off until you have more information.

We recommend trying a variety of ways to contact the employee to find out more about why they haven’t been at work and when they expect to return. Try calling, texting, and emailing, and failing all that, send a certified letter. Document all attempts to reach the employee. If after an extended absence with no successful contact you decide to proceed with termination, detail your efforts to reach them in that communication. Be aware that if they finally do respond with an explanation that appears to be protected by law, you may ultimately need to restore them to their position.

Is there anything different we should do when terminating a remote employee?

For the most part, no. Your termination process should look much the same. However, there are a few extra steps you may need to consider:

• If your employee is in a different state, follow the notice and other termination requirements for that location. For example, if your company is in Michigan, but the employee works in California, California law will apply.

• Consider the employee’s time zone when scheduling the meeting.

• Plan how you’ll get back any company equipment the employee has in their possession (if they’ll need to ship things back to you, have them do it during work hours on their last day, or if that’s not possible, add the time it will take into their final paycheck).

• Have all termination paperwork ready to email or mail, ensure you have an accurate email or physical address for the employee, and send it by a speedy method where you can verify receipt.

What’s the difference between a furlough and a layoff?

Furloughs and layoffs are ways to reduce labor costs during times of economic hardship. They both involve a loss of work for employees, but there is a key difference between them.

A furlough continues employment but reduces scheduled hours or requires a period of unpaid leave. Because the employment relationship remains intact, employees typically expect that they’ll come back to their full schedule when the period of hardship is over. Employers should generally avoid using a furlough if the odds of bringing people back are slim, as it can provide false hope and prevent employees from seeking new work when they should.

A layoff, on the other hand, involves terminating the employment relationship. In most cases, layoffs are permanent, and employees don’t expect to be rehired. While layoffs can be temporary, furloughs are usually the better option when the employer plans to bring the employees back since it avoids the administrative hassle of terminating and rehiring employees.

Whichever method is chosen, employees may be owed certain notices and benefit continuation rights. In addition, affected employees may be eligible for unemployment insurance benefits.

DISCLAIMER: This information does not constitute legal advice and does not address state or local law.