When an employee informs you that they were injured while working from home, take the claim seriously and follow your usual procedure for a workplace injury. Here are the steps we recommend:
• Thank them for letting you know about the injury and ask if they need medical attention. If necessary, help them get it. Their health and safety should be your first priority.
• Have the employee complete a workers’ compensation claim form, which can be obtained from your carrier. The carrier should be notified as soon as possible.

Yes. In general, you can determine work locations for your remote employees and choose not to hire or employ anyone in specific states. Business and operational costs as well as state or local employment laws may factor into this decision. If you do decide to limit which states your employees can work in, we recommend including this information in your job postings. This should help streamline the recruiting process by reducing the number of applications received from states where you don’t intend to hire. You should also make current employees aware of any restrictions on where they can work.

Yes, you can and should require that remote employees notify the company when they move. There may be compliance and tax obligations when an employee relocates to a new city or state—not only for the employee, but also for you as the employer. For example, a relocated employee may now be owed a higher minimum wage or be eligible for paid sick leave. Workers’ compensation and unemployment insurance may also be affected.

Managing remote employees can certainly be a challenge. Here are some of the practices we recommend:
• Set measurable goals around quality of work. Whether employees get their work done to your satisfaction is more important to your bottom line than whether they’re always at their workstation. Make all the resources necessary for employees to do their jobs remotely easily available. These may include phones, computers, extra monitors, video conferencing software, and instant messaging apps. If you need employees to have fast internet speeds, consider subsidizing the necessary costs.
• Create and communicate a work-from-home policy so everyone knows what’s expected of them.
• Talk regularly with employees about what’s working well and not-so-well. Encourage them to reach out to HR or a manager if remote work is causing any difficulties or challenges.
• Hold all meetings virtually, even if some people are working in a company office, so everyone is equally able to participate. This means having employees who are in the workplace login from their individual computers and not be in the same room as their other in-office colleagues during the meeting.
• Promote a good work-life balance by making sure remote employees know when their workday ends. It’s very easy for employees working at home to spend more time working than they would in an office environment.

We do not recommend having a policy that stipulates childcare is necessary. For one thing, in practice, it often isn’t necessary. Lots of employees are able to do their jobs just fine while supervising children in the home. Imposing this requirement (and a huge financial burden) won’t solve any problems, but it may encourage remote employees to start looking for a new job. Even in cases where supervising children does negatively affect job performance, mandating childcare as a solution could be seen as crossing a line into your employees’ personal lives.

Instead, we recommend setting clear expectations for attendance, availability, performance, and productivity. You can then discipline employees who don’t meet these expectations without giving the impression that you’re micromanaging their personal lives.

It’s also worth keeping in mind that employee expectations around remote work have changed. People choose remote work with the idea that they’ll have more flexibility during the day to attend to their personal responsibilities. If that flexibility isn’t an option, it’s important to make that clear so employees know what to expect.

Good question. It comes up a lot with employers who have people working remotely or at a worksite in a different state. The answer is simple: Employees should be paid the minimum wage for the state in which they work, whether this is a satellite office or their own home. Beyond that, it’s important to be aware that some cities and counties have even higher minimum wages than the state they are located in. In general, with most employment laws, you should adhere to the law that is most beneficial to the employee.

Remote employees who otherwise qualify will be eligible for FMLA if they report to or receive work assignments from a location that has 50 or more employees within a 75-mile radius.

According to the FMLA regulations, the worksite for remote employees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” So, for example, if a remote employee working in Frisco, TX reports to their company’s headquarters in Portland, OR, and that site in Portland has 65 employees working within a 75-mile radius, then the employee in Frisco may be eligible for FMLA. However, if the site in Portland has only 42 employees, then the remote employee would not be eligible for FMLA. The distance of the remote employee from their worksite is immaterial.

There is no federal requirement for employers to provide written notice about why someone is being terminated, but we do recommend providing written notice as best practice. This reduces the likelihood of the terminated employee spinning up their own (possibly illegal) reason for the termination and then claiming there is no documentation to the contrary.

If you provide a letter, it should include the reason for the termination, any relevant details regarding their benefits, and when and how they’ll receive their last paycheck (if you aren’t giving it to them in person at the termination meeting). The employee may not be in the best frame of mind to remember the details of your meeting, and the letter will remind them what comes next. We recommend being truthful and direct about the reason for terminating an employee. Doing so can help provide closure and is generally a professional courtesy.

You can find a sample termination letter on the platform.
This Q&A does not constitute legal advice and does not address state or local law.

At-will employment means that the employer or employee can end the employment relationship for almost any reason (with or without cause) at any time (with or without notice).
It does not, however, allow you to terminate someone for an illegal reason, like their inclusion in a protected class or their exercise of a legal right.
Every state (except Montana) assumes the employment relationship is at-will unless there is a legal agreement in place that says otherwise. Assuming you want to maintain the at-will relationship with employees, we recommend including clear language about this in your employee handbook. But keep in mind that even with an at-will relationship, terminations carry risk. A terminated employee can always claim that they were terminated for an illegal reason, at which point you’ll want to be able to show otherwise. To reduce that risk and nip any potential claims in the bud, you should have and document a lawful, business-related reason for each termination.
You can find more information on employment termination and at-will employment on the platform. If you would like more information on drafting an employment contract, please contact an attorney.
This Q&A does not constitute legal advice and does not address state or local law

No, federal law requires you to pay employees for all hours they have worked. While you can and should have a policy defining job abandonment (e.g., if an employee no-shows and no-calls three days in a row, you’ll take that as a resignation), you are not allowed to deduct or withhold pay because an employee quits without notice.

Unless job abandonment happens regularly, it’s probably not something you need to worry about discouraging. That said, there are some practices that may help encourage employees to give notice:
• Allow employees who give appropriate notice to work through their notice period. Sometimes businesses want to terminate employment immediately when someone gives notice, but this only discourages employees from giving notice at all.
• Remind your staff that if they abandon their job, their coworkers bear a lot of the burden.
• Celebrate “good” departures. When employees resign with appropriate notice, publicly show your appreciation for the great work they did and support for the next step they’re taking in their career or lives.
You can learn more about job abandonment, including what to do (and not to do) when it occurs, on the platform.

Terminations involving remote employees function much the same as those in a physical worksite, but there are some things to keep in mind:

• If the employee works in a different state, you’ll need to follow that state’s laws regarding termination procedures, paperwork, and final paychecks. Look these up on the platform ahead of time. You don’t want to miss any deadlines.
• Coordinate with IT so they are prepared to remotely revoke the employee’s access to company systems immediately upon termination.
• Have a clear process in place for the employee to return any company-owned computers, monitors, phone systems, etc. and plan to pay for shipping. Go over the process at the termination meeting.
• Don’t make deductions from the final paycheck because the employee hasn’t returned company property or has returned things damaged unless you’re sure it’s legal in the state where they work and that you’ve complied with any related requirements.
• As with most terminations, be sure to have documentation of behavior and performance issues, conversations you had, disciplinary actions you took, and warnings to the employee about the consequences if they failed to improve. This documentation may be helpful if the termination is ever challenged.
You can learn more about conducting terminations on the platform.

There really isn’t a strict definition of what constitutes job abandonment. Many employers use the standard of three consecutive absences with no notice, but you can set the standard for your organization.

To keep everyone on the same page, we recommend defining job abandonment in your employee handbook. Explain what job abandonment means at your organization and what happens when it occurs. For example, you might say that if an employee is absent for three consecutive days and has not provided proper notification, the company will assume that the employee has abandoned their position and will be treated as having voluntarily terminated employment with the company.

But even with a clear policy, we recommend attempting to contact an absent employee before terminating. There may be extenuating circumstances, and in some cases the employee may be entitled to protected leave (for instance, if they were in a car accident and have been in the ICU). Attempt to reach out by phone, text, or email, depending on how the employee has said they’d like to be reached. Document your attempts to communicate with them and make note of the outcome.

If you’re unable to reach them and their absence qualifies as job abandonment under your policy, you can proceed with termination. Should you later discover that the employee was entitled to protected leave (rare but possible), you may need to reinstate them, assuming that’s what they want.

An exit interview is a conversation with a departing employee about their time at the company and the reason for their departure. It’s completely optional, but some employers conduct them to learn about workplace issues they may want to address.

Exit interviews can be a good opportunity to get the employee’s perspective on the training they received, the compensation the company offered, the growth potential the employee felt they had, the performance review process, and their assessment of employee morale. They can also shine a light on toxic management practices, hostile work environments, departmental conflict, and employee concerns that haven’t been shared with management or HR. That said, departing employees who were reluctant to raise these issues earlier may still be hesitant or unwilling to share them on their way out the door.

Exit interviews typically use one of two formats: an in-person interview or a form the employee completes on their own. Each format has its advantages. The interview allows for further questioning in the event the employee mentions something you’d like additional information about. The written form option lets the employee give more consideration to each question and answer each one at a pace that works for them.

If you conduct exit interviews, be sure to put the information you receive to good use. Share it—as appropriate—with the leaders in the company. Some of these conversations might be difficult, especially if you’re having to address sub-par management practices, correct unproductive working conditions, or investigate harassment. But exit interviews will be useful only if you’re willing to have these conversations and make changes based on what you learn.

Terminating employment because an employee is looking for work elsewhere isn’t expressly prohibited by law, but we wouldn’t recommend it. You might be surprised by how many of your employees are looking for other opportunities—either actively or passively—while still doing good work for your organization. If you start terminating everyone who is keeping an eye out for the next opportunity, you may find yourself with woefully few employees left. This is also the kind of organizational behavior that makes the water cooler news, hurts morale, and may even make it into an online review of your business. For all of these reasons, we’d suggest a different approach.

Instead of terminating this employee, you might consider talking with them to determine why they are looking for work elsewhere and what might motivate them to stay. There may be issues you can fix. In fact, a lot of employers regularly conduct both exits and stay interviews to get more insight into the reasons that their employees leave or what keeps them motivated to stay. This information helps them better engage their workforce and increase retention.

We would recommend against terminating employment simply on the basis of an arrest. For one thing, the fact of an arrest is neither proof that criminal conduct occurred nor an indication that the arrested employee will be convicted of a crime. For another, basing employment decisions on arrests (and convictions) can have a disparate impact on certain racial groups. Note as well that some states also treat non-conviction arrests as a protected characteristic, meaning employers in those states are forbidden from considering those records.

The Equal Employment Opportunity Commission (EEOC) recommends that employers only make decisions based on an arrest if the underlying conduct makes the individual unfit for the position in question. But even then, the EEOC suggests that the employer give the employee a chance to explain the events and circumstances that led to their arrest. The employer is then in a better position both to assess the credibility of the employee’s account and to make an employment decision related to the underlying conduct rather than the mere fact of an arrest.

No, you have no obligation to explain to them why their son’s employment was terminated, and we would not recommend doing so. If you decide to respond so they’ll stop calling you, you can emphasize that you don’t discuss employment matters with anyone except the employee. You can tell them that their son can reach out to you himself if he has additional questions about his termination.

We would recommend against terminating employment simply on the basis of an arrest. For one thing, the fact of an arrest is neither proof that criminal conduct occurred nor an indication that the arrested employee will be convicted of a crime. For another, basing employment decisions on arrests (and convictions) can have a disparate impact on certain racial groups. Note as well that some states also treat non-conviction arrests as a protected characteristic, meaning employers in those states are forbidden from considering those records.

The Equal Employment Opportunity Commission (EEOC) recommends that employers only make decisions based on an arrest if the underlying conduct makes the individual unfit for the position in question. But even then, the EEOC suggests that the employer give the employee a chance to explain the events and circumstances that led to their arrest. The employer is then in a better position both to assess the credibility of the employee’s account and to make an employment decision related to the underlying conduct rather than the mere fact of an arrest.

Requiring departing employees to give notice could jeopardize their at-will status (if applicable). To avoid this, I recommend requesting that employees provide notice instead of requiring it. Asking for notice as a professional courtesy makes it more likely that you will have time to make plans to find a replacement or otherwise cover their duties. Two weeks’ notice is most common.

Beyond requesting notice, you can remind employees that their notice (or lack thereof) will be taken into consideration if they seek re-employment with the company or if a future employer asks for an employment reference. If a future employer contacts you for a reference check, you may share that the employee quit with no or insufficient notice if that is true.

It means there’s always a risk that a terminated employee could make an issue of the termination, claiming that it was discriminatory or based on some other illegal reason. (There’s also the risk that they will bad-mouth your organization on the internet.)

In most cases, employers can terminate an employee for any reason or no reason at all. However, there are a handful of illegal reasons for firing someone, and nothing you do can guarantee that an employee won’t call a lawyer or the Department of Labor and claim that their termination was for one of these illegal reasons, even if you had great documentation and they’d done something completely worthy of termination. This is why no termination is risk-free.

That said, while you can’t eliminate all risk, you can and should do everything in your power to reduce it (e.g., having a clear, well-documented reason for the termination, being respectful to the departing employee). If you have a good reason for the termination, and the terminated employee knows you can provide evidence of this reason, they’re much less likely to try to bring a claim against you.

No, termination always comes with some risk, even when the employment is at-will. While at-will employment allows either you or the employee to terminate the employment relationship at any time, with or without notice, and with or without cause, it doesn’t allow you to terminate employment for an unlawful reason which includes termination based on the fact that the employee exercised a legal right (like taking family leave or sick leave) or belongs to a protected class (e.g., age, disability, race, sex, religion, national origin).

There’s even some risk when the termination is for cause because a terminated employee could claim that your reasoning is just for show and that they were actually terminated for an illegal reason. That risk grows exponentially when you don’t provide the employee with a legitimate reason for the termination. This is why we suggest you tell a departing employee the factual reason(s) why they are being let go rather than falling back on “at-will employment” to avoid explaining your reasoning.

Consequently, the safest way to terminate an employee is to have documentation that justifies the legitimate business reasons behind the termination. If the termination is due to the employee’s behavior or performance, documentation would include infractions of the policy, instances of poor performance, and any disciplinary or corrective action taken. If the termination is due to a layoff or reduction in force, documentation would show that there was no work available and identify the business reasons for eliminating the position. If you aren’t laying off everyone in a particular job group, however, you’ll still want objective documentation that shows why this particular person was selected for layoffs, such as less impressive performance or less seniority than their peers.

The more you can do to show that you had a legitimate business reason for termination, the harder it will be for an employee to fill in the blank with their own illegal reason for termination, and the less risky it will be.

Yes, you’re on safer ground terminating the accused employee if you interview him as part of your investigation – and do the same for other employees accused of harassment. In this case, you might not learn anything that would change your mind about the termination, but it’s still a possibility. More importantly, if the terminated employee were to challenge your decision, you would be able to show that he wasn’t treated any differently than other accused employees.

If you were to skip the interview with him, while typically interviewing other employees who have been accused of harassment or misconduct, he could claim that your decision in his case was discriminatory. A consistent practice protects you against discrimination claims, and since you’ll often need to talk to accused employees to get a full picture of what happened, it’s best to consistently interview all employees accused of wrongdoing.

While all terminations carry some inherent risk, there are some best practices that can reduce risk significantly:

Documentation
Good, ongoing documentation is your best defense to any challenge, whether from the employee in the termination meeting, the state unemployment insurance department, the labor department, or opposing counsel in court. Be sure to document behavior and performance issues when they happen, conversations you have, disciplinary actions you take, and warnings to the employee about the consequences if they fail to improve. While there is no exact amount of documentation that will eliminate risk, more is generally better. We recommend that you have enough documentation to show a pattern, as well as your good faith effort to help the employee improve.

Not relying on at-will employment status
Employers (particularly when short on documentation) often rely on the concept of at-will employment, which means that employees can be terminated at any time, with or without notice, and with or without cause. However, there are many exceptions to employment-at-will, such as when the termination is unlawful (related to the employee’s disability, race, sex, national origin, religion, age, or other protected characteristic, or when it is retaliatory because they exercised some right). If you don’t tell an employee why they are being terminated, they will likely come to their own conclusions, and those conclusions may lead them to call an attorney. Employers should also consider how similar performance or behavior issues have been dealt with in the past, since the different treatment of employees can lead to discrimination claims, regardless of at-will employment status.

Timeliness
Terminations should come as quickly as possible following the performance or behavioral issue that was the “final straw.” Taking prompt action reduces the likelihood that the decision will appear arbitrary to a third party and limit the opportunity for the employee to do something that would make the termination appear retaliatory. For example, if you decide to terminate an employee for fudging their time card one too many times, but wait three weeks because it’s the busy season, in that three weeks the employee might request FMLA leave, make a harassment complaint about a manager, or disclose that they have a disability. Your motive for termination would then appear suspect, even if that is not your intention.

Yes. While it’s fine to ask this question during the interview, we recommend you collect this information ahead of time by asking about it on an employment application. In the section where the applicant lists their previous employment experience, you can ask for the reason they left each job. Trends you notice may be cause for follow-up questions during the interview or a reason not to schedule an interview at all.

If you ask about previous or current employment during the interview, be mindful of the direction the response goes. As with any interview question, you should redirect the candidate if they start to share sensitive information. For example, if a candidate says they left past employment due to medical reasons, don’t ask for details about their condition. Instead, you could ask whether they provided notice of their need to resign and whether they left on good terms.

We have, yes, and we don’t recommend it. First, the practice doesn’t prevent the employee from filing for unemployment, and they may be able to collect unemployment even if they remain employed with you while working reduced hours. Second, when you reduce someone’s hours in the hopes that they quit, you risk creating a perception among employees that a cut in hours is meant to be punitive. And if the employee with reduced hours becomes disgruntled, they may be a threat to morale or choose to file a complaint with an outside agency. Third, the effect of a single unemployment claim on your insurance rate is pretty much negligible—and certainly, nothing compared to the costs of continuing to employ someone who should be terminated.

In general, if you need to terminate an employee and you have documented the reasons for doing so, it’s best just to terminate them. The possibility of a higher unemployment insurance rate shouldn’t be a factor in your decision.

No, that approach is not compliant with regulations. The IRS, the U.S. Department of Labor, and state agencies have specific criteria for determining who is an employee and who is an independent contractor. These criteria focus on the overall relationship workers have with their employer, with attention to who controls when, where, and how the job gets done, along with who has the opportunity for financial profit or loss. The timespan of employment is not one of those criteria. We, therefore, recommend that you pay the employee the day’s wages through your payroll system, taking out payroll taxes and other withholdings as required.

Unemployment insurance (UI) benefit claims can be difficult to contest. Most state unemployment departments will only deny benefits if the employee’s misconduct rose to the level of gross misconduct, like stealing or workplace violence.

Fortunately, however, the effect of a single UI claim on your state unemployment insurance tax rate is minimal to non-existent. More importantly, even if your UI rate increases, that additional cost is often less expensive than keeping on an employee who shows no willingness or ability to improve. If you have documented employee performance expectations and the employee still isn’t meeting them, I wouldn’t let the possibility of a higher UI rate dissuade you from termination. If you’re worried about your UI tax rate generally, the best thing you can do is minimize turnover.

Assuming there is no contract or agreement to the contrary, you’re not required to keep an employee on during their resignation notice period or compensate them for the duration of that period. However, we recommend considering a couple of issues before asking an employee not to work during their notice period.

First, if you have them leave before their notice period is up and don’t pay them for that time, the resignation may become an involuntary termination in the eyes of your state’s unemployment insurance department, making them eligible for unemployment. The effect of a single claim on your UI tax rate is likely to be very small, but if you’re concerned about it, you could pay the employee for the duration of the notice period, but not have them come into work. (Note that you may operate in states where even paying them through that period will not prevent a successful UI claim – you’ll want to check state law if you decide to go this route.) If the employee is leaving your organization to take a position elsewhere, chances are they aren’t planning to file for UI anyway, so this may be a moot point.

Second, terminating the employee before their resignation period comes to an end could motivate other employees to forego giving adequate notice in the event they resign. By terminating an employee immediately, rather than letting them earn two more weeks of pay, you’re effectively telling other employees that you don’t honor notice periods. As a result, they may not see the point in giving you that courtesy.

Ultimately, the choice to terminate early – with or without pay – is up to your discretion. There are certainly good reasons to ask an employee not to return to the office once they have offered you notice. Just keep in mind that it might also be best to go ahead and pay them for their notice period, even if you don’t want them to continue to work.

No, termination always comes with some risk, even when the employment is at-will. While at-will employment allows either the employer or the employee to terminate the employment relationship at any time, with or without notice, and with or without cause, it does not permit you to terminate employment based on the employee exercising a legal right or belonging to a protected class (e.g., race, sex, religion, national origin).

There’s even some risk when the termination is for cause because a terminated employee could claim that your reasoning is just for show and that they were actually terminated for an illegal reason. That risk grows exponentially when you don’t provide the employee with a sensible reason for the termination.

Consequently, the safest way to terminate an employee is to have documentation that justifies the legitimate business reasons behind the termination. This documentation would include infractions of the policy, instances of poor performance, and any disciplinary or corrective action taken. The more you can do to show that you had a legitimate business reason, the harder it will be for an employee to fill in the blank with their own illegal reason for termination, and the less risky it will be.

While some leaves are protected by law—the Family and Medical Leave Act, for example—there is no law that requires an employer to provide job restoration after a personal leave of absence. However, whether you should provide job restoration will depend on what was communicated to the employee when she took her leave, as well as what your internal policies indicate. If you have a personal leave of absence policy, you should review it—ideally, that policy indicates that you have discretion about how to deal with employees upon return. If promises were made to the employee, you’ll want to keep those as best you can.

Be as transparent as you can about the need for the reorganization, and once you’ve presented her with her options (new positions or no position), I recommend giving her a few days to consider whether she’d like to accept the new role.w

Yes, this former employee must be paid for the time they spent in required orientation and training, even if they did not begin their regularly scheduled work.

Under the Fair Labor Standards Act, workers must be paid for any time they are required or allowed to work. Time worked ordinarily includes all time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace—essentially any time spent under the employer’s control. This includes new employee orientation, paperwork completion, reading of the employee handbook, and on- or off-site training. It doesn’t matter that the employee wasn’t yet doing the job you hired them to do; it only matters that what they were doing is considered time worked under the law.

Unfortunately, an employer may not simultaneously utilize the at-will employment provisions and require that an employee provide notice ahead of separation. Instead, I recommend requesting that employees provide notice as a professional courtesy so that you have time to make plans for their replacement or cover their duties, making the transition smoother for their co-workers and customers.

Beyond this, you may remind employees that their notice (or lack thereof) will be taken into consideration should they seek re-employment with the company or should a future employer seek an employment reference. If a future employer contacts you for a reference check, you may share that the individual quit with no notice, or did not provide sufficient notice ahead of their separation per the company’s request.

While you can’t require at-will employees to give notice, giving these reminders may encourage employees to provide notice ahead of their departure

Unless there is a contract or agreement to the contrary, employers are under no obligation to keep an employee on during their resignation notice period or to provide them with compensation for the duration of that period. However, there are a couple of issues to consider before accepting an employee’s resignation early.

First, if you ask the employee not to work the remainder of the notice period and do not pay them for that time, the resignation may become an involuntary termination in the eyes of the state’s unemployment insurance department. Note that the effect of a single claim on your UI tax rate is likely to be small to non-existent. However, if you’re concerned about that, you can pay the employee for the full notice period, but ask them not to come into work.

Second, terminating the employee before their resignation period comes to an end could motivate other employees to forego giving adequate notice in the event they resign. By terminating an employee immediately, rather than letting them earn two more weeks of pay, you’re effectively telling other employees that you don’t honor notice periods. As a result, they may not see the point in giving you that courtesy.

Ultimately, the choice to terminate early – with or without pay – is up to your discretion. There are certainly good reasons to ask an employee not to return to the office once they have offered you notice. Just keep in mind that there may be other reasons to go ahead and pay them for their notice period, even if you don’t want them to continue to work.

The use of a performance improvement plan (PIP) can help reduce the risk inherent in any termination. A PIP is used to help employees whose performance has slipped, become inconsistent, or otherwise needs improvement.

It’s safest to terminate an employee when you have documentation that justifies the legitimate business reasons for the termination. If you’re terminating for poor performance, this documentation should include past warnings for poor performance, explanations of the consequences for the employee if they didn’t improve, and evidence that the employee failed to do so.

A great way to do all this is with a PIP, which specifies your expectations for employee performance, defines what success looks like going forward, sets regular meetings with the employee to discuss their progress, and explains the consequences for failing to meet and sustain improved performance within an established timeframe.

If the employee continues to underperform or fails to sustain improved performance, you may need to move on to termination. If you’ve been using a PIP, you will have the documentation to demonstrate that you gave them a chance to improve. This record will make it more difficult for the employee to challenge the reason for termination.

No. Some employers call the first few weeks or months of an employee’s time with the company an introductory period, but this designation has no bearing on the rights employers or employees have. An introductory period doesn’t reduce the risks of termination (you should still have a good business reason and documentation) or mean that an employee let go during that time won’t get unemployment insurance.

It depends. There are many reasons an employee may choose to use a job title on LinkedIn that is different than their official job title with your organization. For one, employees may feel that their job title doesn’t accurately or meaningfully describe the work they are doing. A job title that makes perfect sense internally may not be easily decipherable outside the organization. Numbered titles like Administrative Assistant 1 or 2 don’t, in themselves, tell you which one is higher. Trendy titles like Brand Evangelist may get overlooked in searches.
On the flip side, you may have reasons for wanting your employees to use the title that you have chosen for their position. Likely, you put thought into the role, selecting a title that you believe best reflects the position. You may also want your employees with the same job title to appear similarly on LinkedIn to show consistency across your organization. If your employee is using a title that doesn’t reflect the work they are doing or is extremely embellished (for example, you have an accountant using the job title CFO), it may be causing confusion, both internally and externally, about who does what in your organization.
Before talking to the employee, you should decide if their title use is something that really needs to be addressed. If the title makes sense for the role and isn’t overinflated, you may not want to do anything.
If you decide to reach out to the employee, we recommend a neutral approach. Be curious with them. Mention you saw the job title they were using on LinkedIn and were wondering why they chose that title. Listen and consider their reasons. You can share with the employee that you would prefer that their job title on LinkedIn better reflect the title they have within the organization.
If you’re concerned that the use of inaccurate job titles may be widespread, we’d suggest providing guidance to all employees on how they should list their job title on LinkedIn. This way you establish a baseline and can refer to it in the future.
This Q&A does not constitute legal advice and does not address state or local law.

Yes, you can expand your policy to include wearables or other smart devices that might cause distractions to your employees while they are working. Here are a few things to consider when revising your policies:
• Focus your policy on the employee’s actions and not the technology itself. If your policy is written broadly enough to keep up with evolving technology, you won’t need to update it to account for every new kind of device.
• Address how mobile devices may affect workplace safety, customer service, productivity, and security. Employees may be more receptive to limits on their use of personal devices if they understand the reasons for it.
• Allow devices to be used during break and meal periods. Employees should be allowed to use their devices when they’re not working, as this time must be their own to satisfy wage and hour laws.
• Smartwatches have health and fitness features, so there may also be reasonable accommodations implications under the Americans with Disabilities Act (ADA). For example, an employee might use a smartwatch to keep an eye on their heart rate or respiration. Learn more about the ADA on the platform.
• You can prohibit the use of devices that may be distracting while employees are working, especially if there are safety issues. Employees can be expected to give their undivided attention to the work you pay them to perform, and if that means smart devices need to be turned off or put away, you’re entitled to make this request.
• You should consider whether employees need to be reachable during the day for emergencies (like most parents). If your workplace doesn’t have a central line or a way for employees to be reached directly, it may be unreasonable to require that phones or devices be turned completely off.
• While you can ask that wearable devices be turned off or put away, you may want to instead limit what employees are doing with their smart devices (e.g., texting). Many people use smartwatches for telling the time, and if their phones are also put away, they may not have another way of getting that information, which could ultimately affect productivity.
• You could also opt to allow limited use when employees are working. For example, a non-customer-facing employee may be able to use headphones and their mobile device to listen to music while completing their work.

Generally, and as long as you’re not a federal contractor, you don’t need to post an open position for all employees to see. That said, if your company has an established policy or practice of posting internally, you should be consistent.

Of course, what you can do as an employer and what you should do are often not the same. Posting new positions internally is generally a good idea, even if it creates some extra work. Opening the position to all internal applicants demonstrates transparency and increases the likelihood of finding the best candidate. The employee you had in mind might not actually be the best person for the job, they may not be interested in the position, or other circumstances might change such that having a wider applicant pool would be an advantage. Posting jobs internally also helps you keep a pulse on your internal talent pool and see who is interested in either cross training or promotional opportunities.

The HR Snapshot does not constitute legal advice and does not address state or local law. For example, Colorado does have posting requirements.

In general, yes. When an employee is on a performance improvement plan (PIP), and their performance has not improved and has, in fact, gotten worse, it is perfectly reasonable to cut the timeframe of the PIP short and move forward with further disciplinary action, including termination. Unless it’s written to say otherwise—and it absolutely shouldn’t be—a PIP is not a guarantee of employment for the duration of the plan. It shouldn’t alter the at-will employment relationship.

Just be sure that you are following historical practices if you have had similar situations in the past. The most important thing is to remain consistent. Document—and tell the employee—the reason why the PIP was cut short, listing each policy violation or performance issue individually, in case you are asked to provide context at a later date.

Menopause (the time that marks the end of the menstrual cycle) and perimenopause (the time just before) can come with a host of symptoms. Anxiety, brain fog, burnout, menstrual changes, cognitive changes, depression, hot flashes, sleep issues, and stress are common experiences. Not everyone experiences them or to the same degree, however.

While symptoms can be problematic for those experiencing them, they are generally manageable and shouldn’t impact the quality of an employee’s work, especially if you’re willing to offer support. Here are some ideas:
• If employees come to you wanting to talk about their symptoms, don’t shy away from the discussion. Be able to talk about menopause as the normal phase of life that it is. Meet employees where they are, listen to them, and consider any accommodations they request. Even if accommodations are not legally required, providing them generates good will with employees and can make you an employer of choice for people in this stage of their life.
• Let managers know that menopausal issues may come up, so that possibility should be on their radar. Give managers some pointers about what to do (e.g., be supportive and flexible, comply with legal requirements as applicable) and not do (e.g., discriminate, assume menopause is a contributing factor to their behavior or performance).
• Implement simple and easy practices that give employees time and space to meet their needs. Can your employees take unscheduled breaks or step out of a meeting if they feel the need? The freedom to take unscheduled breaks, even during meetings, can help when an employee is having a hot flash. The ability to get some fresh air when needed and work in close proximity to a bathroom may also help. If you offer flexible schedules or remote options for other reasons, consider offering them to menopausal employees as well.
• Address menopause in workplace health programs, employee assistance programs, and health and wellness presentations.

If you haven’t had previous issues with this employee’s performance, I wouldn’t worry too much about his taking a second job. Side jobs are common, and many people manage them just fine. You can certainly reiterate your performance expectations, whether that’s completing assignments on time, immediately responding to messages, or meeting production quotas.

If at some point the quality of this employee’s work does begin to suffer, I would meet with him sooner rather than later to address the issue. A simple warning may be enough to get his performance back on track. Other options might include a performance improvement plan or a modified schedule that helps him better balance the two jobs.

Another consideration you might make is whether there are additional job opportunities at your place of employment that would appeal to this employee. Chances are he’s taken a side job to earn extra pay, expand his network, or enhance his work experience. Those may be goals you can help him achieve so he doesn’t have to look for work elsewhere.

In general, concerted activity takes place when employees act as a group (in concert) for their mutual aid or protection. This includes activities like discussing the terms and conditions of their employment, such as pay, benefits, treatment by management, dress codes, workplace policies, or scheduling.

This activity—when engaged in by non-supervisory employees—is protected by Section 7 of the National Labor Relations Act. That means employers are legally prohibited from trying to stop employees from engaging in the concerted activity or taking adverse when they do. While supervisors don’t have these protections under Section 7, the term supervisor has a narrower definition than you might expect. To be exempt, supervisors must have real authority and use their independent judgment when wielding it. For instance, the 19-year-old assistant manager who is technically in charge when other supervisors are on break, but who doesn’t have the power to fire, discipline, or respond to the grievances of other employees, almost certainly still has protections under Section 7.

Employers should also be aware that it’s fairly easy for an employee to be protected under the act if they are discussing the terms and conditions of their employment either physically around co-workers or managers or in the same virtual space as co-workers or managers. While an employee may not be intending to act in concert for the mutual aid of themselves and their coworkers, if they post on Facebook about how they are overworked and underpaid, and several colleagues chime in that they agree, or even just “like” the post, that can become protected concerted activity.

An adverse action is any action an employer takes that negatively affects an employee. These include discipline, termination, demotion, reduced pay, and reduced hours. In certain circumstances, a transfer or change in job duties could also be an adverse action.

Adverse actions are often warranted. Employees, after all, should face negative consequences for poor performance or misconduct. But there is a risk whenever you take adverse action. The employee could claim that the action was taken for a discriminatory or other illegal reason. The risk is greater if the employee has recently engaged in any kind of protected activity such as taking leave or filing a complaint with a state agency.

You can minimize the risk of taking adverse action by clearly documenting the reason for it and by being respectful of the affected employee. If you have a good reason for the adverse action, and the affected employee understands this reason and knows you can provide evidence for it, they’re much less likely to try to bring a claim against you. There’s also a better chance that the adverse action will end up being a net positive for the employee, i.e., they’ll get their act together and be successful.

We recommended addressing the performance issue with the employee as soon as possible.

First, feedback is more effective the more quickly it’s delivered. Waiting to provide feedback increases the likelihood that the employee won’t remember what they did wrong and that they may make the same mistake again.

Second, waiting to provide feedback risks sending the wrong message. The employee might feel that their mistake wasn’t that big of a deal since you waited so long to address it. Worse, they might associate they’re being disciplined with something else they did more recently—like bringing up a safety concern, reporting harassment, or using sick leave or FMLA.

That said, there are legitimate reasons to wait before disciplining an employee. If the employee went on leave immediately following their performance mistake, for example, you would usually want to wait until they returned to work before addressing the issue. You might also need to wait on any disciplinary action if the incident requires an investigation to determine what actually happened.

Natural hairstyle discrimination occurs when natural or protective hairstyles (most often worn by Black women) are prohibited or are the basis of different or unfavorable treatment. That sounds a bit technical, but what it usually looks like in practice is dress codes that prohibit cornrows, locks, or afros, and hiring managers rejecting candidates with natural hair because they don’t have a “professional” look about them.

Some states have made natural hairstyle discrimination illegal by amending their employment discrimination laws to specifically define race as including traits associated with race, including hair texture and protective hairstyles. Protective hairstyles include (but aren’t limited to) afros, Bantu knots, curls, braids, locks, and twists.

In states that have made natural hair discrimination illegal, employees have legal protections so that they don’t have to do something special or difficult with their hair (such as straighten it) just to come to work. It also means they don’t have to change this part of their racial identity for work. Ideally, they don’t have to worry about not being hired, being demoted, or being considered unprofessional because they wear a natural or protective hairstyle.

Whether or not you operate in a state that has made natural hairstyle discrimination illegal, we strongly recommend that you allow and encourage employees to wear hairstyles that work for them, whether that’s because they are easy, protective, or part of how they identify themselves.

Yes, you can limit or prohibit the use of personal devices during work hours. Employees can be expected to give their undivided attention to the work you pay them to perform, and if that means phones need to be silenced or put away, you are entitled to make this request. An all-out ban on phone use may not be necessary, however. Periodic mental health breaks can actually improve overall productivity. And if an employee is able to work efficiently and not distract their colleagues while listening to music or a podcast, there’s probably no reason to prohibit them from doing so.

However you decide to approach cell phone use during work hours, employees should be allowed to use them during their break and meal periods. This time needs to be truly their own in order to satisfy the requirements of many state laws.

Be sure to outline your expectations in a handbook policy and distribute it to all employees

The current EEO-1 form only provides a male or female option, but there is a comment box you can use to report data for non-binary employees by job category and race/ethnicity. The comment box appears on the certification page in the EEO-1 Component 1 Online Filing System.

The EEOC asks that you preface this data with the phrase, “Additional Employee Data.” For example, to report a non-binary white administrative assistant, you would type, “Additional Employee Data: 1 non-binary gender employee in Job Category Administrative Support Workers; Race/Ethnicity: White (Not Hispanic or Latino).”

In the future, the EEOC may add an option for easily reporting non-binary employees. We hope that they do.

We recommend having five separate files for each employee, as outlined below:

• I-9 file: Keep all Form I-9s in a separate master file or three-ring binder.
• Medical file: This file should contain everything related to an employee’s medical history, including health insurance enrollment forms. It’s important to separate this file because you cannot legally base personnel decisions, such as who gets promoted and who doesn’t, on an individual’s medical history. In addition, various privacy laws and the Americans with Disabilities Act (ADA) require that you keep confidential employee medical records separate from basic personnel files. The retention period will depend on the type of record.
• Personnel file: This file should contain items that were a factor in the employee’s hiring and employment in addition to items that will have any impact on their employment in the future. This includes performance reviews and corrective action records.
• Payroll records file: This file should contain the employee’s W-4 and any other payroll-related documents containing the employee’s SSN or other protected information, including garnishments.
• Injury file: Keep a file for any employee who is injured while on the job. This file should contain workers’ compensation claim records and injury reports, and any additional medical records pertaining to the injury. It’s okay to start this file only if an employee suffers an injury on the job.
  These files should be kept in a secure location that is only accessible to those in the HR function or with a legitimate need to review the information—for instance, in locked cabinets inside a locked HR office. This information can be stored electronically if that makes more sense for your business. Just ensure that it’s well secured and backed up to prevent data loss.

There are specific requirements for storing I-9s electronically, which are probably good standards for any kind of electronic data storage. If you’d like more information about that, search for “I-9 storage” in the HR Support Center.

Yes, generally, you can require employees to have their webcam on during meetings. You may, however, want to take things like low internet bandwidth, equipment failure, software incompatibility, mental health, environmental circumstances, privacy issues, and other reasonable concerns into account when setting expectations. For example, employees may have difficulty staying connected if multiple people in their household are using video conferencing apps at the same time.

I would recommend that you send out some guidelines about video conferencing etiquette. You can include the expectation that employees will participate in meetings using their webcams unless there are extenuating circumstances. Supervisors can then handle, on a case-by-case basis, any issues with employees not using the webcam.

Discipline should reflect the severity of the behavior, attempt to correct it, and be applied consistently. You’ll want to consider how you addressed certain behaviors in the past and the precedent you want to set for the future. For instance, if you jump straight to a final warning when a certain employee is an hour late to work, but let another employee come in late regularly without so much as a written warning, you’re setting yourself up for trouble.

We generally recommend progressive discipline. This means you start small and work your way up to termination. Progressive discipline often includes these steps:

• Oral counseling/warning(s)
• Written warning(s)
• Final written warning
• Unpaid suspension— we generally don’t recommend this, as it’s likely to make the employee more disgruntled than they were before, and ultimately be more harmful than helpful, but you may find that it’s appropriate in some circumstances; be sure to keep reporting time pay in mind for non-exempt employees, depending on state law
• Termination

At each step, make your expectations clear, notify the employee of the consequences should they fail to improve (that they’ll be one step closer to termination), and document what actions you took. The warnings you give to the employee should stick to the facts, i.e., what infraction was observed, when it occurred, and what policy or policies was violated. Opinions about the infraction should be left out, as these are easily disputed. For example, “Yesterday, you arrived 20 minutes late in violation of our attendance policy” simply states the facts, whereas “You’re always tardy and can’t be trusted to arrive on time” is likely to get pushback.

When you find an error on an I-9, the USCIS recommends that you do the following:
• Draw a line through the incorrect information.
• Enter the correct information.
• Initial and date the correction.
Once you’ve completed the above steps, include a note with the I-9 explaining why the change was made.

We would not recommend telling sick employees to come to work or disciplining them if they refuse. If an employee comes in sick, they could expose the rest of your workforce and your customers to the illness. Requiring sick employees to work can also create feelings of resentment, damaging employee morale and increasing turnover.

Aside from the risks of spreading germs and angering employees, asking sick employees to work when they don’t want to might also violate their rights. In states and localities with sick leave laws, employees with sick leave in the bank are generally entitled to use that time when they see fit, without jumping through hoops (e.g., seeking permission, getting doctor’s notes, providing lots of notice, or finding their own replacement).

Yes. Generally, you can send sick employees home early when they are visibly ill or there is an objective concern for the spread of a contagious virus. We recommend you inform the employee, as well as your other employees, of your expectations for when employees should or should not come to work due to common contagious illnesses. Many employers choose to send employees home only in severe circumstances (e.g., a highly contagious illness) as the cold and flu seasons could mean that many employees are sick or recovering at the same time, and employees may not need to stay home when fighting, for example, a minor cold.

Keep in mind that it is important that everyone has a clear understanding of what is grounds for sending an employee homesick and that it is applied fairly to everyone. Also, in the event that you send an employee homesick, we would strongly recommend giving them the option to use any accumulated sick or vacation time.

For these reasons, a written policy to that effect would probably be helpful. That way sick employees know what is expected of them and can save themselves the trip to work.

Take note, however, that some states require reporting time pay, so if you send a non-exempt employee home after they have reported for work, you may still owe them half of their scheduled shift. Additionally, exempt employees in all states must be paid for the full day of work, even if sent home early due to illness, if any work at all was performed that day, including work from home.

To deter sick employees who want to work from coming in and spreading their germs, you might consider offering paid sick leave. If employees don’t have to worry about a smaller paycheck when they take a sick day, they won’t feel so compelled to work when under the weather.

Probably not. Depending on what they said, and who responded to it, their speech may be protected under Section 7 of the National Labor Relations Act. Section 7 protects concerted activity by employees that relate to the terms on conditions of their employment. Concerted means “in concert,” so two or more employees must be involved, but this is easily achieved on social media if a co-worker even just “likes” the post. Terms and conditions could include pay, hours, work environment, treatment from managers, benefits, or violations of labor and employment laws.

We understand that this sort of social media activity by employees can be frustrating. One way to reduce the likelihood that employees will air their grievances on social media is to establish a means for them to do so internally. Employee surveys, comment boxes (whether physical or online), stay interviews, and true “Open Door” policies are common ways to solicit this feedback. The key is to be willing to listen and act on the information you gather. If employees believe that taking their complaints directly to a manager will end in retaliation, or that it simply won’t lead to any change, they’re more likely to keep complaining on the internet.

The mere fact that you’re getting more complaints than normal isn’t necessarily something to worry about. The increase in complaints could be a sign that there are now more issues that require your attention, or it could be a sign that your employees are—for some reason—feeling safer speaking to you about their concerns.

In and of themselves, complaints can be a good thing because they inform you about matters that may have escaped your notice and they indicate that your employees trust you to resolve those matters. The last thing you want is for employees to keep their concerns to themselves or vent about them to their colleagues (or the entire internet). You can’t solve problems you don’t know about, and unaddressed problems can quickly turn into bigger issues. Knowing what’s troubling your employees is essential for effective risk management.

Listen to what your employees have to say, thank them for bringing the matters to your attention, keep the lines of communication open, and do what you can to resolve the issues. If several complaints relating to a single issue (or person), you may want to give that issue more attention or urgency. And, of course, any complaint that suggests there may be harassment or discrimination should be dealt with promptly and thoroughly.

While dealing with the additional complaints, keep in mind that if you can solve or improve the problems that are being brought to your attention, you’ll have happier—and likely more productive—employees.

Yes, I would suggest you give the employee a verbal warning concerning her unprofessional behavior. While you could, in fact, tell her to “grow up,” that may not be the most useful advice. You can tell her that slamming and stomping are not acceptable behaviors in a professional setting and that you would appreciate it if she addressed frustrations with her direct supervisor or with you. You should also remind her that you’re on the same team and helping the team is part of everyone’s job description. You might also let her know that you’re there to support her, that you want her to succeed, and that while first jobs can be especially stressful, she’s not alone.

After this sort of discussion, if an employee continues to display the same type of behavior, I find it’s best to pull the employee aside, let them know right away that this is an example of what you consider to be unprofessional behavior, and warn them that further discipline will occur if the unprofessional behavior doesn’t stop.

In short, your responsibilities are to not discriminate because of their service and to offer them their job back after military-related absences.

The rights of applicants and employees who serve in the uniformed military services are protected by the Uniformed Services Employment and Reemployment Act (USERRA). Under this act, it is unlawful for an employer to discriminate in hiring, reemployment, retention, promotion, pay, or any benefit of employment due to a person’s military service or intent to apply for military service.

You should allow the employee to take unpaid leave to attend deployments, scheduled drills, and annual training. When the employee returns, they should be restored to the position they would have been entitled to if they had remained continuously employed.

In addition to the protected military leave, some employers offer extra time off after deployments or provide other support to help their employees who serve in the armed forces. Offering this sort of additional support can make an organization an employer of choice for members of the military services.

There are many potential liabilities resulting from misclassification and they come from several sources: namely, the IRS, unemployment insurance, workers’ compensation, federal wage and hour law, and state wage and hour law.

An employer will owe up to three years of back taxes on the misclassified employee’s wages, in addition to fines and interest. They will also owe back unemployment and workers’ compensation insurance. And they may also owe premiums on other state-run insurance programs, such as paid family leave.

In addition to money owed to government entities, employers will also owe misclassified workers two to three years of back pay for any work they did that was not compensated at applicable minimum wage and overtime rates, as well as liquidated (extra) damages equal to that amount. Finally, in states that have their own minimum wage, overtime, or employee classification laws, the employee will likely be able to sue and recover under both state and federal law. There may also be hefty attorney fees on top of the costs described above.

It doesn’t matter much if an employer misclassifies someone by accident. Under certain laws, willfulness will increase the potential damages from two years of back pay to three, and lead to higher statutory penalties. But most of the laws at play in misclassification and wage and hour cases are strict liability statutes, meaning it makes no difference that the employer didn’t mean to do it incorrectly.

First, it is important that you maintain several separate files that will contain different types of employee information. I have outlined below the organization system that we recommend as a quick reference of “what goes where.” Each section described below should be kept separately for each individual employee.

Here is the organizational system that we recommend:
• I-9 file: Keep all Form I-9s in a separate master file or three-ring binder;
• Medical file: This file should contain everything related to an employee’s medical history, including health insurance enrollment forms. It’s important to separate this file because you cannot legally base personnel decisions, such as who gets promoted and who doesn’t, on an individual’s medical history. In addition, various privacy laws and the Americans with Disabilities Act (ADA) require that you keep confidential employee medical records separate from basic personnel files. The retention period will depend on the type of record.
• Personnel file: This file should contain items that were a factor in the employee’s hiring and employment in addition to items that will have any impact on their employment in the future. This includes performance reviews and corrective action records.
• Payroll records file: This file should contain the employee’s W-4 and any other payroll-related documents containing the employee’s SSN or other protected information, including garnishments.
• Injury file: Keep a file for any employee who is injured while on the job. This file should contain workers’ compensation claim records and injury reports, and any additional medical records pertaining to the injury. It’s okay to start this file only if an employee suffers an injury on the job.
These files should be kept in a secure location that is only accessible to those in the HR function or with a legitimate need to review the information—for instance, in locked cabinets in a locked HR office. This information can be stored electronically if that makes more sense for your business. Just ensure that it’s backed up to prevent data loss, and well-secured.

There are specific requirements for storing I-9s electronically, which are probably good standards for any kind of electronic data storage. If you’d like more information about that, search for I-9 storage in the HR Support Center.

I would recommend against disciplining the employees for these activities on social media as their speech is almost certainly protected under Section 7 of the National Labor Relations Act. Section 7 protects certain “concerted activity” by employees, which is an activity done in concert, meaning more than one employee is involved. This kind of activity is protected if it’s related to their terms and conditions of employment (e.g., pay and scheduled hours).

In this case, because the employee complained about their pay and hours in a virtual space and other employees joined in – expressing their agreement through “likes,” emojis, and comments – the actions are clearly concerted activity and therefore protected.

I understand, however, that this sort of social media activity by employees can be frustrating. One way to reduce the likelihood that employees will air their grievances on social media is to establish a means for them to do so internally. Employee surveys, comment boxes (whether physical or online), stay interviews, and true “Open Door” policies are all ways to solicit this feedback. The key is to be willing to listen and act on the information you gather. If employees think taking their complaints directly to a manager will end in retaliation, or simply won’t lead to any change, they’re more likely to keep complaining on the internet.

I recommend you inform affected employees that this information is missing, ask them to bring documents to establish their identity and work authorization the next time they work, and complete the Form I-9 with them. The U.S. Citizenship and Immigration Services (USCIS) requires that an I-9 is completed as soon as possible when it is determined one isn’t on file.

A few things to keep in mind:

• I recommend providing the Lists of Acceptable documents included with the I-9 instructions to employees in preparation for completion of the I-9. Please note, however, that an employer may not specify which document(s) an employee may provide for completion of the form.
• If an employee fails to bring documentation within the required timeframe, you may terminate employment based on the inability to meet the employment verification requirements. You may choose to rehire them later if they present the proper document(s) (and complete a new I-9), but you are not required to hold their position.
• Don’t backdate the form. The employee must enter the date they complete the I-9 on their signature line in Section 1, and you must enter the date you reviewed the required documents on your signature line in Section 2. The form must, however, have the employee’s original start date.
• We also recommend including a memo with the I-9 in your files explaining why it wasn’t completed within three days following the employee’s hire date. I recommend stating that as a result of conducting an internal audit, you determined that the I-9 was missing and completed one immediately, which is why the date of completion is not within the required three days from the date employment began.

Yes, it is completely permissible for non-exempt employees to manage other non-exempt employees. In fact, employers are under no obligation to classify employees as exempt, even if they meet the criteria under the Fair Labor Standards Act. Employers may have an entire workforce of non-exempt employees if they wish. It is just very important to make sure that they are paid for any overtime and follow other wage and hour laws applicable to non-exempt employees.

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 that aren’t work-related during work hours.

That said, I recommend having a policy that focuses on job performance rather than political discussions specifically. If an employee spends too much time engaged in extra office chat, regardless of the topic, they’re probably not performing to your expectations. If nothing else, they’re distracting others. By prohibiting excessive chit-chat generally, you avoid creating the appearance of targeting political speech, and you reduce instances of other disruptive speech and behavior.

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.

Employee retention is one of the most difficult and expensive challenges faced by business owners, managers, and HR departments. Fortunately, the keys to retention are simple and straightforward, though certainly easier said than done. The following three practices are essential:

• Pick the right people in the first place. Put thought and care into your recruitment and interview procedures. The more time you and other employees can spend with candidates, the surer you’ll be that they believe in your mission, understand the challenges and frustrations of the position and want to contribute to your success.
• Make sure your compensation and benefits remain competitive. This is a tall order and may squeeze your bottom line in ways that make you uncomfortable, but it’s necessary if retention is at the top of your priority list. Make it a goal to do a yearly analysis of your total compensation package to ensure that it’s at least keeping up with the market. Many employers who know they can’t offer competitive pay offer other compelling benefits, like generous PTO and the ability to work from home.
• Be appreciative. A little gratitude can go a long way. And you can show it in multiple ways – from flexibility when employees need it, to a willingness to hear out ideas, to employee appreciation programs. Even a simple thank you can work wonders.

In your case, if you have a reasonable belief, based on objective evidence (such as her own description of the injury and what it will take to recover), that the employee’s ability to perform essential job functions will be impaired by the injury or that the employee will pose a direct threat due to a medical condition, you may consider requiring a doctor’s release prior to allowing the employee to return to work. Under the Americans with Disabilities Act, disability-related inquiries or medical examinations may only be made when they are “job-related and consistent with business necessity.” It’s important to ensure that you’re considering the specific job the employee has. For example, where an employee has a safety-sensitive role or one that requires physical labor, there would typically be more justification in requesting a doctor’s release than where the employee sits at a desk for the entire day.

If you’ve determined that legitimate concerns about the employee’s ability to do her job exist, I would recommend that you let her know that you will need a doctor’s release for her to come back to work. You can explain your concerns about her ability to do the job and the potential for additional harm caused by her returning to work too soon.

Generally, no. Only federal contractors are required to post open positions, so you can offer the employee the job without posting it for potential external or internal candidates to apply. It is important to note, however, that if you have an established company policy that promises a practice of posting internally, you should follow this.

I do recommend at least posting new positions internally, as it shows transparency and increases the likelihood of finding the best candidate. The employee you had in mind might not actually be the best person for the job, they may not be interested in the position, or other circumstances might change such that having a wider applicant pool would be an advantage. Posting jobs internally also helps you keep a pulse on your internal talent pool and see who is interested in either cross-training or promotional opportunities.

Performance improvement plans (PIPs) are best suited for performance issues, such as an employee not hitting their required sales goals or failing to complete projects on time. PIPs are put in place for a pre-determined period (often 90—120 days) and involve regular meetings to evaluate the employee’s progress. At the end of the period, if the performance hasn’t improved, you can decide whether to terminate the employee.

In contrast, a record of employee conversation and a disciplinary action notice is used when there is a policy the employee has violated, such as an employee not following your normal call-in procedure to report an absence. The record of employee conversation is used to document an oral warning (so you keep a copy but don’t give one to the employee) and is usually reserved for the first offense. The disciplinary action notice is a written warning, usually for either a serious offense or a repeated offense. The employee receives a copy of the disciplinary action notice.

We recommend you not ask an employee if they’re pregnant and, instead, wait for them to inform you Generally, employers may not inquire about an employee’s private health information unless an employee has requested an accommodation or leave. It’s understandable that you will need to plan for their absence; however, pressuring them to notify you before she is ready could expose the company to potential liability.

Also, employees are under no obligation to inform their employer of a pregnancy. The only exception is if an employee is planning to take leave under the Family and Medical Leave Act (FMLA), which requires 30 days advance notice for leaves that are foreseeable.

We are often asked this question because employers believe they need to take special precautions with pregnant employees, so allow me to give you a bit of additional information on that subject:
• You may not require medical certification that an employee may continue working while pregnant.
• You should not put the employee on restricted duty or make any other modifications to her work unless she has informed you that she has restrictions due to a health condition.
• You may not force a pregnant employee into a leave of absence or work restriction while she is still capable of performing the essential duties of her job.
• The employee alone is responsible for making decisions that affect her safety and that of her future offspring.
• You are prohibited from retaliating against an employee who has spoken up or registered any kind of complaint about interference with her sole decision-making.
• Once the employee notifies you of the pregnancy, you should ensure that she knows she has options available to her if at some point she needs accommodation to do her work.
• State law may require that you provide the employee with certain notices.
• State law may require that certain accommodations be offered to pregnant employees, even if they do not have conditions that rise to the level of disability.
• The employee may be entitled to take leave during and after the pregnancy.

Once you have 15 employees, the federal laws below would apply to you. Here is a brief summary of what you need to know about them:

• Americans with Disabilities Act (ADA): Protects qualified individuals with disabilities from unlawful employment discrimination, prohibits discrimination where an individual is able to perform their essential job functions, and requires an employer to make reasonable accommodations for disabled individuals unless doing so would place an undue hardship on the employer.
• Genetic Information and Nondiscrimination Act (GINA): Prohibits the use of genetic information in employment and restricts employers from requesting or requiring genetic information.
• Pregnancy Discrimination Act (PDA): Protects pregnant employees from being retaliated against in any way due to pregnancy, childbirth, or any related medical conditions.
• Title VII of the 1964 Civil Rights Act: Prohibits discrimination in all terms and conditions of employment (including pay and benefits) on the basis of race, color, national origin, religion, and sex. Note that several federal courts have ruled that sex includes sexual orientation, and one has ruled that it includes gender identity as well.

For a complete list of the different federal laws that may apply based on employee count, you can find our Federal Labor Laws by Employee Count in Organizations guide in the HR Support Center by hovering over the Documents tab, selecting Guides, and then HR Administration.

Remember, there may also be additional state laws that apply as your company grows. Feel free to reach out if you would like more information about them. You can also search which state laws apply to your organization, based on your location and size, in the HR Support Center by using the Law Finder under the Laws tab.

You may discipline for unauthorized overtime as you would for any other violation of your policy.

It sounds as though you have already given the employee a verbal warning. I would recommend issuing a written warning for the next violation. If the violations continue, you could take further corrective action, up to and including termination.

Following this sort of progressive discipline in accordance with your policy helps protect you in the event the employee challenges any of the corrective actions.

Remember, though, that any overtime worked by non-exempt employees must be compensated, regardless of whether the overtime was authorized.

No, I don’t recommend reducing hours as a disciplinary measure.

Discipline is most effective when it directly addresses the performance or behavioral issue the employee is having. The aim is to improve performance or correct behavior. Reducing hours, however, doesn’t accomplish either of those objectives or deal with the problem directly. And if reducing hours isn’t common practice in your workplace, an employee could challenge your decision as inconsistent with your policy or discriminatory.

Instead, I would recommend that you follow a progressive discipline process, possibly with a performance improvement plan. Meet with the employee to discuss the performance or behavioral problems, and document your expectations going forward.

Treating the employee consistently with your policy and documenting the steps of the process will be useful if any of your decisions are later challenged. And using discipline that directly addresses the problems at hand will give the employee an opportunity to improve and better contribute to your organization’s success. If the performance or behavior doesn’t improve, you could then look at further discipline or termination.

When an employee changes their legal name, you are not required to update their I-9. However, the US Citizenship and Immigration Services (USCIS) recommends maintaining correct information on I-9s. You can easily update an employee’s I-9 by entering their new legal name in Box A of Section 3, and then sign, date, and print your name on the final line. You can request documentation of the name change so you can update the I-9, but employees are not required to provide documentation for this purpose.

That said, there are a few additional administrative steps for both you and the employee to complete:

• Have the employee provide a copy of their updated Social Security card with the new name and use it to update their name in the payroll system; be sure they are identical to avoid SS mismatches.
• Have the employee complete a new W-4. The Internal Revenue Service (IRS) requires that the name on the Social Security card match the name on W-4 and W-2 forms.
• Update the employee’s benefits paperwork. If the change is related to marriage or other qualifying events, the employee may also want to change elections or add or remove a spouse or dependent(s). This is also the best time to make changes to their beneficiary forms as needed.
• If driving is one of their job duties, you may want to request an updated version of their Driver’s License for your records.
• Update company phone lists, email accounts, business cards, badges, uniforms, nameplates, etc.

Depending on the circumstances, there may other considerations, but in most cases, this list will cover your legal obligations as well as internal documentation.

Yes, an employee may submit a new W-4 anytime they have changes. Often, they’ll submit a new form when they know they’ll be changing exemptions, adjustments, deductions, or credits on their return.

For example, an employee may want to increase their withholding by decreasing the number of dependents they claim. Or they might want to add dependents to decrease the amount withheld. Life events such as marriage, divorce, and childbirth are common reasons to update a W-4, but employees can generally change their withholding allowances at any time and for any reason.

According to the IRS, employees who are making changes due to a divorce (if they’ve been claiming married status) or for any event that decreases the number of withholding allowances they can claim should submit a new W-4 within 10 days.

After a W-4 is received, the new withholding amount should be put into effect no later than the start of the first payroll period ending on or after the 30th day from when the employee submitted the replacement Form W-4.

The Department of Homeland Security (DHS) announced on September 5th that they have initiated the “orderly phase-out” of the program known as Deferred Action for Childhood Arrivals (DACA). The DACA program allowed certain people (sometimes called “Dreamers”) who came to the United States as children – and who met several key requirements – to request deferred action from deportation for a period of two years. That deferred action could then be renewed, subject to approval. DACA also provides eligibility for temporary work authorization.

At this time, we don’t recommend that employers take any immediate action related to the DHS announcement. It’s important not to attempt to identify DACA recipients based on I-9s, ask employees whether they are DACA participants, or make staffing decisions based on a potential loss of work authorization. These actions could increase the risk of a charge of employment discrimination.

Please keep in mind that work authorization from the DACA program will not immediately expire due to the program phase-out. According to information released by DHS, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked by DHS. DACA benefits are generally valid for two years from the date of issuance. DHS will process new applications for DACA that were received prior to September 5th. Current DACA recipients with work authorization that will expire any time before March 5, 2018, will also be able to file applications for renewal up until October 5, 2017.

We recommend you complete I-9 re-verification as you normally would when an employee’s temporary documents expire. At the time of expiration, if the employee can’t provide updated work authorization, they would no longer be eligible to work for you.

There are various pieces of legislation that have been introduced that would grant legal status or create a pathway to citizenship for those who were eligible for DACA. At this point, we do not know what will come of them, and it’s uncertain what will happen after the phase-out of DACA.

You can read more information in this DHS FAQ.

You shouldn’t hand over investigation notes, witness statements, or other documentation. That information was shared with an expectation of confidentiality (at least whenever possible). Sharing would violate that trust and potentially deter employees from participating in future investigations. Likewise, the employee’s complaint shouldn’t be shared with anyone else. This, of course, includes the accused party. Aside from breaking confidence, it could lead to retaliation.

On a related note, since under state law personnel files may have to be provided to employees upon request, it’s best to keep investigation files separate from personnel files. It’s reasonable to include a copy of the general results of an investigation in the personnel file, but don’t include any complaints, investigation notes, or witness statements.

When an employer receives a harassment claim, they have a legal obligation to examine the claim by conducting a thorough investigation. This includes the following steps:
1. Select an interviewer. Typically, this person would be an impartial manager, company officer, or HR representative. They should approach the investigation process without a presumption of guilt or innocence and with the commitment to treat the situation as fairly as possible. Typically, the investigation can and should be conducted and closed within three days.
2. Speak with the employee who made the complaint (if you know who they are), the accused employee, and any witnesses they name. The questions asked during the interview should not lead an interviewee toward a particular response and should not be accusatory in nature. They should be unbiased, open-ended, and prepared in advance. It’s also important not to promise a particular outcome to employees participating in the investigation.
3. Once the investigation interviews are complete, document your conclusions and actions taken. If the company determines that the accused employee did in fact violate its harassment or other workplace policy, appropriate disciplinary measures may be administered. What qualifies as appropriate would depend on the severity of behavior; it may include termination of employment. A summary of the findings should be placed in the accused employee’s file.
4. Inform both the accused employee and the accuser about the conclusions of the investigation and any disciplinary measures taken. The complaining employee doesn’t need to know the specific disciplinary action, just that appropriate corrective action has been taken. Remind both employees that you will not tolerate retaliation.
5. In some situations, it is advisable to separate employees to limit the potential for future incidents, but care should be taken so this step doesn’t have a negative impact on the employee who raised the complaint.

In addition to the above steps, it’s not a bad idea to consult with legal counsel when you receive allegations of harassment or discrimination.

The answer will depend on a number of factors, such as how many employees are misclassified, how much extra money they would have been paid if properly classified, and whether or not lawyers or regulatory agencies get involved.

Generally, if an employee goes to the federal Department of Labor (DOL) and claims that they’ve been misclassified, the DOL will investigate. If the DOL determines that an employee—or entire group of employees—should have been paid overtime but wasn’t, the employee will be owed up to two years’ worth of unpaid wages (or up to three if the misclassification was “willful”). The organization may also owe the employee or employees liquidated damages equal to the amount of money owed. So, if an employee should have been paid $2,000 in overtime, the organization may owe them $4,000. The organization would also owe the government taxes on those wages, as well as interest on the taxes.

Most states also have their own minimum wage and overtime laws, and often an organization can be held liable under both federal and state law, meaning the employee would be owed additional damages for violations of state wage law. And if you are in a state with late payment penalties, the organization could owe additional damages for not having paid all wages by the time they were due. There’s also a very good chance that the organization will be held liable for attorney’s fees—both the organization’s and the employee’s.

On top of the costs mentioned above, there are potential federal civil penalties of $2,074 per violation (generally one penalty per misclassified employee), state penalties (which will vary), and in some cases the potential for jail time. Finally, statutory interest may immediately begin to accrue on the amount owed.

Yes, I would recommend investigating the allegations even though the accusing employee has left the organization. If your investigation shows that harassment occurred, I would recommend taking disciplinary action as appropriate.

Federal law obligates employers to prevent or stop unlawful harassment. Harassment happens when behavior is unwelcome and based on a protected class such as race, gender, age, religion, national origin, or disability. It becomes unlawful when it is severe or pervasive enough to create a hostile work environment. In this case, since you’ve been made aware of alleged sexual harassment, failing to investigate the allegations could invite risk, especially if additional complaints are made against the same individual.

No. Unless you have objective evidence such as the direct visual observation that the back pain is interfering with the employee’s work, you should leave it alone. If at some point in the future it becomes apparent that the employee is having issues while working (for example, unable to lift, as usual, holding their back, groaning, etc.), then you should definitely speak with them to understand if there may be some restrictions that would affect their ability to continue doing the essential functions of their job. If so, you should discuss whether there is a reasonable accommodation you can offer to make that possible. You may be able to request documentation from the employee’s health care provider concerning applicable restrictions and duration to help with this process and determination.

So, unless a disability becomes apparent through observation, or is reported to you by the employee themselves, their family member, or a doctor, you should not assume one exists or that it would affect their ability to perform their job. Doing so can lead to discrimination claims as well as poor morale and hurt feelings.

Probably. It would be a good idea to consider whether your investigation was thorough. If it was, and all you have to go on is the testimony of the accuser and the accused, then you should take their credibility into consideration and make a determination based on their respective accounts.

Here are some factors to consider when determining credibility:
• Each employee’s reputation for truthfulness and accuracy
• If the story each employee presents is plausible
• Whether one of the employees has a motive to be untruthful
• Whether one employee’s statements regarding the incident are more detailed and consistent
While disciplining an accused employee who did nothing wrong would be unfortunate, it wouldn’t be illegal. As in all cases of alleged harassment, it’s best to have documentation of the allegations, the steps of your investigation, your conclusions, and any disciplinary actions you took.

A racially insensitive comment could be considered harassment—and it would be unlawful harassment if putting up with such comments became a condition of continued employment (essentially, management was unwilling to put a stop to it) or if the conduct was severe or pervasive enough to create a work environment that a reasonable person would consider hostile.

Since you have a duty as an employer to stop unlawful harassment, we recommend that you investigate the alleged comment and, if you find evidence to support that your harassment or other conduct policies have been violated, discipline the employee who made it. Make sure that the punishment fits the crime. For instance, something that was, in fact, just insensitive may warrant a verbal warning, whereas calling someone by a racial slur may warrant a final warning or even termination, depending on the circumstances. Be sure to document your findings and any disciplinary actions that are taken.

You can learn more about conducting investigations and disciplining employees by searching harassment on the HR Support Center.

As an employer, you have an obligation to take steps to prevent harassment and deal with it thoroughly and promptly when it occurs. Since the alleged behavior may constitute sexual harassment, we recommend that you investigate the matter and put a stop to any such behavior as soon as possible.

Speak to the employee who complained, any witnesses, and the accused employee. Once the investigation interviews are complete, we recommend internally documenting your conclusions and actions taken.

If you determine that the accused employee violated the company’s harassment or other workplace policy, you should take appropriate disciplinary measures. It is then important to inform both the accused employee and the accuser about the conclusions of the investigation. The employee who made the complaint doesn’t need to know the specific disciplinary action you took, just that appropriate corrective action was taken.

Make sure that you document every step of your investigation and resulting actions taken so you can show that you fulfilled your obligations. Having a clean record will also help you ensure that similar situations are handled consistently in the future.

For dozens of additional resources, including a step-by-step Workplace Complaint Investigation Guide, search for harassment investigation in the search bar on the HR Support Center.

Even though the employee has left the organization, I recommend conducting an investigation into the allegations and taking disciplinary action against the alleged harasser if appropriate. Failing to look into these concerns can invite risk, especially if there are later complaints against the same individual.

When an employee resigns, it’s not uncommon for them to share an assortment of complaints on their way out the door. You should sift through and determine whether any of them are related to unlawful activity or safety concerns. These claims are serious enough to warrant an investigation.

Other complaints—such as those about management style, favoritism, or violation of less important company policies—may be worth examining, but they likely don’t trigger a duty to investigate in the same way that claims of unlawful activity do. These less risk-inducing claims can be pursued at your discretion.

If you discover a document that clearly looks fraudulent, or like it does not identify the correct individual, you should talk with the employee about it and ask them to provide alternate documentation from the list of acceptable documents.

On the other hand, if you only find a copy of a document that is hard to read, unclear, or confusing to you, no action may be required. The US Immigration and Customs Enforcement (ICE) guidance related to internal I-9 audits specifically states that an employer “should recognize that it may not be able to definitively determine the genuineness of Form I-9 documentation based on photocopies of the documentation. An employer should not request documentation from an employee solely because photocopies of documents are unclear.”

There aren’t always easy answers for how to handle situations that arise during internal I-9 audits. An employer must balance the risk of being found to have knowingly continued to employ someone without valid work authorization against the potential that their actions will lead to a claim of discriminatory treatment based on immigration status.

If you discover an employee has been falsifying their timecard, you should refer to your policies and past practice. Hopefully, you have a policy that makes it clear that timesheets must be accurate and that failure to report time correctly could lead to discipline—up to and including termination. But remember that consistency is key, and similar situations should be handled in the same manner to avoid claims of discrimination. You don’t want to “make an example” of one employee if other employees have been treated more leniently for issues like this in the past.

You should also hear the employee’s side of the story prior to making a final termination decision. Even in situations where you have significant evidence of misconduct, you may learn something during your conversation with the employee that changes your perspective. For instance, they may be writing in extra hours Monday through Friday to account for time spent working on the weekend. If this were the case, they might still be in violation of company policies, but you’d probably want to determine why this was happening and if there are underlying issues that are leading to off-the-clock work. Terminating someone for attempting to get paid for all hours worked would be a dangerous move.

If you don’t learn anything from the conversation with the employee that changes your assessment that they’ve been wrongly reporting their time worked, then you can move to discipline or termination, whichever is your standard practice for this type of misconduct.

Yes, this is likely a phishing scam. Inform your IT staff immediately and do not respond to the email. You should also warn employees to be on the lookout for suspicious emails like this and remind them never to email sensitive employee information.

Last year, the IRS issued a warning about an emerging phishing email scheme that targets HR and payroll departments. The scammer purports to be a company executive and requests personal information about employees — often in the form of W-2s or payroll records. In other cases, they ask for a list of names, birth dates, home addresses, salaries, and social security numbers. The scammers then attempt to use the information to file fraudulent tax returns and engage in other criminal activity.

A successful scam can be a costly data breach with legal consequences for employers. For example, if an email account is hacked or accessed by an outside party, everything in the email account might be accessible to them. One of the best ways to protect your company from these sorts of scams is to have a policy and practice of never emailing sensitive employee information.

The language below may be an effective reminder:

“Employees should not under any circumstance email sensitive employee information such as W-2s, benefit enrollment forms, completed census forms, or anything with social security or credit card numbers. Email is inherently insecure, and scammers may pose as company executives or employees to steal information. If you receive a request to email any such sensitive information, do not respond to it. Instead, inform your manager immediately.”

Businesses are generally required to take reasonable precautions to protect personal information in their possession. In the event of a breach, many states require that notice be given to those whose information was compromised. This notice might need to include the cause and nature of the data breach as well as what protections are afforded to those affected.

No. If you or any of your managers become aware that harassment, discrimination, workplace violence, or any other illegal activity has or may have occurred, you are legally required to investigate and take steps to stop the behavior. Knowing about this kind of behavior (and taking insufficient action) can make you liable, so you should investigate and stop any questionable behavior even if the victim doesn’t want to cooperate.

That said, if the employee merely has a general gripe or complaint that seems to indicate a simple personality conflict, then you may defer to the employee’s wishes on whether to act. Minor conflicts between employees may cause discontent in the workplace, but they don’t obligate you as the employer to investigate and resolve the issue.

Whenever an employee makes you aware of an injury or accident during the workday or at the workplace, your best course of action is to file a claim with your workers’ compensation carrier. Once the claim is in their system, you can work with the carrier to determine if the claim is valid. If you have concerns, you can (and should) raise them with the carrier.

Once the carrier has the claim and related information, they can analyze the issue and decide whether they want to dispute or negotiate the claim and what benefits will or will not be offered. Like you, they want to control costs, so they will be on your side as circumstances allow.

If the employee does not wish to file a claim, you should still have them complete the claim form to document the incident. You should also be sure to document that the employee declined to file for benefits.

When a company suspects that an employee has violated its harassment or discrimination policy, we always recommend conducting a complete (and well-documented) investigation into the allegations. This includes speaking with the employee who made the complaint, the accused employee, and any witnesses they name.

The investigation generally includes a series of interviews conducted by an impartial manager, company officer, or Human Resources representative. This individual should approach the investigation process without a presumption of guilt or innocence and with the commitment to treating the situation as fairly as possible. It’s also helpful to have another manager or HR representative present during the interviews to serve as a third-party witness and to take detailed notes.

The questions asked during the interview should not “lead” a witness toward a particular response and should not be accusatory in nature. They should be unbiased and open-ended. Formulating them in advance is a best practice. It’s also important not to promise a particular outcome to employees participating in the investigation.

Once the investigation interviews are complete, we recommend internally documenting your conclusions and actions taken. Should management determine that the accused employee did in fact violate the company’s harassment or other workplace policy, we recommend taking the appropriate disciplinary measures, which depending on the severity of behavior may include termination of employment. A memo summarizing the findings should be placed in the accused employee’s file.

It is then important to inform both the accused employee and the accuser about the conclusions of the investigation and any disciplinary measures taken. The complaining employee doesn’t need to know the specific disciplinary action, just that appropriate corrective action has been taken.

If the results of the investigation do not warrant terminating the accused employee, we recommend corrective measures such as a written warning and additional training on your harassment policy. It’s also important that you notify both employees about your anti-retaliation policy. In some situations, it is advisable to separate the two employees to limit the potential for future incidents, but care should be taken so this step doesn’t have a negative impact on the employee who raised the complaint.

Companies that do not make changes substantial enough to eliminate harassment once they become aware of it face greater liability in the event of future issues. A company can help reduce risk related to harassment complaints by conducting a quick, thorough, fair and well-documented investigation followed by steps to minimize the risk of such behavior happening in the future.

In addition to the above guidelines, it’s often prudent to consult with your legal counsel upon receipt of any allegations of harassment or discrimination.

I would recommend suspending this employee and conducting an internal investigation. You may also want to report the theft to law enforcement depending on the circumstances.

An internal investigation generally includes interviewing any employee who may be involved and any potential witnesses about what they saw. You’re looking for firsthand knowledge, not rumors or speculation. If you have video surveillance, it should be included in your investigation file. Even if the accused employee fails to cooperate, you should still investigate as best you can and document your good faith efforts.

During the interviews, ask the employees for general information about what they know or what they saw. Formulating questions in advance helps ensure that your investigation remains unbiased and open-ended. When interviewing co-workers, be sure not to disclose which employee you suspect of stealing.

These interviews should be confidential to the extent reasonable and conducted in a discreet manner. It’s also good to have a manager or HR Representative in the interviews to serve as a third-party witness and take detailed notes. This documentation may prove helpful if the company is ever challenged regarding this situation and its outcome.

If the results of the investigation revealed that an employee did in fact engage in theft, you may opt to terminate the employee.

Yes, I recommend you investigate. A company always has some inherent liability in relation to discriminatory or harassing comments or behavior. The level of liability usually correlates to the nature, severity, and context of the comments, the position of the employee who made them, and what the employer does or does not do about it.

Since you have knowledge of a potential situation, I recommend you investigate the matter and take appropriate disciplinary action if it turns out your anti-harassment policy was violated. As you conduct the investigation, document the discussions you have as well as your findings and reassure those you interview that their participation will not result in retaliation.

If you need additional guidance on conducting an investigation of this type, You may want to consider joining our HR Support Center Program.

The answer depends on the nature of the disability and the functional limitation it imposes. For example, if you were requesting documentation for an accommodation request concerning a mental health condition, a psychiatrist or psychologist would be an appropriate professional, but a physical therapist wouldn’t be since they don’t have the expertise to diagnose or treat such a condition.

According to the Equal Employment Opportunity Commission, appropriate professionals include, but are not limited to doctors, psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals. Depending on the circumstances, other medical professionals who are knowledgeable about the employee’s condition may also be appropriate.

Our definition of disability comes from the Americans with Disabilities Act (ADA). According to the ADA, an individual with a disability is a person who:
• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.
Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The ADA prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

If an employee informs you that they have a disability and requests accommodation, you should begin the interactive process. Basically, you and the employee determine what, if anything, can be done to accommodate them so that the essential functions of the job get done to your standards and the employee is able to continue to have the equal benefits and privileges of employment. As part of this conversation, you may request a doctor’s note to substantiate the disability.

No, for the most part asking an applicant whether they need an accommodation would constitute a pre-employment disability inquiry, which is prohibited under the Americans with Disabilities Act (ADA). Prior to making an offer of employment, you should only ask whether the applicant can perform the essential functions of the job with or without accommodation. You can and should, however, describe the physical demands of the job (e.g., regularly lifting up to 30 pounds) as well as the physical layout of the workspace in both job postings and job descriptions. Doing that will enable potential applicants to determine for themselves whether the job is something they can physically do. However, be careful not to exaggerate the physical requirement of the job—doing this will limit your candidate pool and could be discriminatory if the requirement is not job-related and consistent with business necessity.

For more information about disability inquiries and accommodations, search “ADA” on the HR Support Center.

This employee may just need to talk through their concerns and get your help prioritizing or delegating. They may, for example, feel like every single thing on their to-do list is life-or-death by Friday at the close of business, when that’s not really the case. Some manager guidance can go a long way, especially for your employees who are usually self-directed.

On the other hand, the stress and mental health effects the employee describes may rise to the level of a disability under the Americans with Disabilities Act (ADA). In this case, we would recommend beginning the interactive process to determine what, if anything, can be done to accommodate them so that the essential functions of the job get done to your standards and the employee is able to keep working. As part of this conversation, you can request a doctor’s note to substantiate the disability.

If you have more general concerns about the effects of stress in your workplace, you might consider ways to help your employees reduce and manage their stress. Tried and true methods include offering health benefits so employees can access health care professionals and paid time off so they can take a day here and there to rest and recharge. Simply encouraging employees to support one another and allowing them breaks during the day can also be a great help.

Under the ADA, an employer is required to provide reasonable accommodations to employees with disabilities, so long as doing so does not create an undue hardship on the organization. Many state laws also use this standard with respect to accommodations for disability, pregnancy, and lactation, so it’s useful to understand. The basic definition is an action that creates a significant difficulty or expense.

The cost of an accommodation could be an undue hardship on the employer, but so could an accommodation’s duration or disruption. An accommodation that would fundamentally alter the nature or operation of the business would be an undue hardship, even if the cost was negligible. But if cost alone is the basis for claiming an accommodation is unreasonable, employers should remember that the standard is a significant expense.

Undue hardship will always be assessed on a case-by-case basis, as there are no hard and fast rules that can be applied. Instead, employers who are hesitant to offer an accommodation should consider the following factors:
• The nature and net cost of the accommodation, taking into consideration the availability of tax credits and deductions, as well as outside funding;
• The overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of individuals employed at the facility, and the effect of the accommodation on expenses and resources;
• The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities;
• The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
• The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.
An employer cannot claim undue hardship based on employee or customer fears or prejudices toward the individual’s disability. Undue hardship also cannot be based on the possibility that a reasonable accommodation could have a negative impact on the morale of other employees. Employers, however, may be able to show undue hardship where a reasonable accommodation would be excessively disruptive to other employees’ ability to work.

Great question! The Equal Employment Opportunity Commission (EEOC) indicates that employers should count everyone who has worked for the employer during at least 20 calendar weeks in the current or previous year. Those 20 weeks don’t have to be consecutive, and the individual could have worked full-time or part-time. The EEOC enforces the Americans with Disabilities Act (ADA), Title VII, the Pregnancy Disability Act, the Genetic Information Nondiscrimination Act, and the Age Discrimination in Employment Act.

Some of those same protections also show up in state laws, which may take effect at lower headcounts. For example, the California Fair Employment and Housing Act (FEHA) has protections similar to those in the ADA. The definition of a disability under FEHA, however, is even broader, and FEHA applies to any organization with 5 or more employees (compared with the ADA’s 15+). So, if you’re trying to set policy or assess liability related to discrimination, make sure you’ve checked state and local laws as well.

They can be, yes. Under the Americans with Disabilities Act (ADA), an individual with a disability is a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.

The ADA prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

If an employee informs you that they have anxiety or depression (or any other medical condition) and requests an accommodation, you should begin the interactive process to see what, if any, reasonable accommodations you can provide. As part of the interactive process, we recommend that you ask for documentation from a medical provider via a medical inquiry form (we have one in the HR Support Center). This should provide you with information about whether the employee meets the criteria for being disabled, as well as the nature and duration of any necessary accommodations.

Whether a particular health care provider would be considered an “appropriate health care professional” would depend on the nature of the disability and the functional limitation it imposes. For example, if you were requesting documentation for an accommodation request concerning a mental health condition, a psychiatrist or psychologist would be an appropriate professional, but a physical therapist would not be as they would not have the training to diagnose or treat such conditions.

According to the Equal Employment Opportunity Commission, appropriate professionals include, but are not limited to doctors, psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals. But this list should not be construed to be all-inclusive. Other medical professionals who are knowledgeable about the employee’s condition may also be appropriate under the circumstances.

In short, no, you don’t need to have a specific policy on service animals for your workplace. If a request comes up, or an employee conveys that they need to have a service animal in your workplace, you should utilize your reasonable accommodation policy and engage in the interactive process.

The interactive process will help you determine if the employee has a covered disability, as defined by the Americans with Disabilities Act (ADA), and if a service animal is a reasonable accommodation. You may ultimately deny the request if the interactive process reveals that the employee is not considered disabled under the law, the animal doesn’t fit the definition of a service animal, or the animal’s presence would create an undue burden. If you’d like more information on reasonable accommodation policies or the interactive process, we have many resources available at the HR Support Center.

The Family and Medical Leave Act (FMLA) provides covered employees job-protected, unpaid leave for family or medical related reasons, such as to care for a sick family member or the birth or adoption of a child. Private sector employers that have 50 or more employees for at least 20 workweeks (does not have to be consecutive) in the current or preceding calendar year are required to provide FMLA to eligible employees.
When counting your employees, include any employee whose name appears on your payroll any working day of a calendar week, regardless of whether they received compensation for the week.
Once your organization meets the 50-employees-for-20-workweeks threshold, it remains covered until it reaches a point in the future when it has no longer employed 50 employees for 20 (nonconsecutive) workweeks in the current and preceding calendar year.
It’s important to note that public agencies and local educational agencies (such as school boards and public/private elementary and secondary schools) are covered by FMLA regardless of the number of employees.
You can find more FMLA-related information and example paperwork on the platform.

FMLA is short for the Family and Medical Leave Act, a federal law that provides employees with unpaid, job protected leave and benefits continuation in certain circumstances. People also commonly call leave under this law FMLA, as in “I’m going on FMLA.” FMLA generally provides 12 weeks of leave in a 12-month period (more if caring for an injured or ill service member).

To take FMLA leave, an employee must work for a covered employer, be eligible, and be using the leave for a covered reason. Let’s look at each in turn.

An employer is a covered employer if they have 50 or more employees for 20 or more weeks in the current or previous year.

An employee is eligible if they have worked for the employer for at least 12 months, worked at least 1,250 hours for the employer in the 12 months before the leave, and work at a location where the employer has at least 50 employees within 75 miles.

The following are covered reasons for leave under FMLA:
• The birth of a child and to care for the newborn child within one year of birth
• The placement of a child for adoption or foster care and to care for that child within one year of placement
• To care for the employee’s spouse, child, or parent who has a serious health condition
• A serious health condition that makes the employee unable to perform an essential function of their job
• Any qualifying exigency because the employee’s spouse, child, or parent is a military member on active duty

FMLA has detailed requirements, which you can learn more about on the platform.

Eligible employees are entitled to take up to 12 workweeks of FMLA leave in a benefit year for qualifying reasons, regardless of any other leave they have taken during the year. An employee may take FMLA leave for their own serious health condition as well as to bond with a newborn baby. Being unable to work because of a pregnancy qualifies as a serious health condition.

If the pregnant employee is starting her leave now because she is unable to work, then her 12 weeks of FMLA starts now. Using 4 weeks of FMLA before the birth will reduce the amount of FMLA she has available for bonding purposes after the baby is born. In other words, she will have 4 weeks of FMLA before the birth and 8 weeks of FMLA after the birth, for a total of 12 weeks.

If you have a policy or promised to grant pregnancy leave without counting it against the employee’s 12-week FMLA entitlement, then you should follow that policy or promise. Keep in mind that employers are responsible for providing timely notices regarding an employee’s FMLA leave and the failure to do so might result in needing to extend the amount of FMLA leave.

Finally, it’s always a good idea to check state law. It’s possible she will have additional leaves available to her if she experiences a pregnancy-related disability.

Yes, in two circumstances. First, you can discipline the employee if their other job violates your outside employment (aka moonlighting) policy. Second, you can discipline an employee who obtained FMLA leave fraudulently. If, however, you do not have a policy that specifically prohibits employees from working for other employers or if the employee’s work for the other employer is compatible with their health condition, then the fact that they are employed elsewhere during a leave is not cause for discipline. For instance, if the employee works a physically demanding job at Company A that they can’t perform because of a medical condition, they may still be able to work a desk job for Company B during leave.

The FMLA specifically allows employers to hold an employee on leave accountable to their uniformly applied moonlighting or outside employment policy. On the flip side, employers without such a policy can’t deny FMLA leave, including job protection and benefits continuation, to an employee just because they’re working elsewhere while on leave—unless you’ve got a case of FMLA fraud.

If you don’t have a moonlighting policy (or do but it’s not uniformly enforced), then the only other way to discipline an employee for working for another employer during their FMLA leave would be if their second job indicates that the employee lied to you about their serious health condition. For example, if the employee’s FMLA certification states that they need to be on bed rest to recover from surgery, and the employee is performing physical labor at the other place, you’ve got a case of FMLA fraud. Fire away! In grayer situations, however, proceed with caution. The safest approach would be to require a recertification in light of the new information that casts doubt on the employee’s stated reason for leave or continuing validity of their original certification. Disciplining an employee on FMLA leave without knowing all the facts can easily give rise to an FMLA interference claim.

Generally not. Upon return from FMLA leave, employees must be restored to the same job or one nearly identical to it with equivalent pay, benefits, and other employment terms and conditions. To be truly equivalent, the job must involve the same or substantially similar duties and responsibilities and require substantially equivalent skill, effort, responsibility, and authority. Equivalent jobs would also have the same premium pay options and overtime opportunities. So, unless you can guarantee that the different role is equivalent to the old one in all these ways, we wouldn’t recommend placing the employee in a different role.

There is, however, a notable exception. Employees on FMLA are not protected from employment actions that would have affected them had they been actively employed with the company at the time. For example, if a substantial decrease in sales required a company to eliminate a set of roles and lay off or transfer those employees, the person on FMLA has no greater right to keep their job than anyone else. In situations like these, where a position has been eliminated while an employee is on a protected leave (of any kind), you should be sure to document your legitimate business reasons for the decision.

To take FMLA leave, an employee must work for a covered employer, be an eligible employee, and be using the leave for a covered reason.

An employer is a covered employer if they have 50 or more employees.

An employee is an eligible employee if they have worked for the employer for at least 12 months in the last seven years, worked at least 1,250 hours for the employer during the 12-month period immediately before the leave, and work at a location where the employer has at least 50 employees within 75 miles.

The following are covered reasons for leave under FMLA:

• The birth of a child and to care for the newborn child within one year of birth;
• The placement of a child for adoption or foster care and to care for that child within one year of placement;
• To care for the employee’s spouse, child, or parent who has a serious health condition;
• A serious health condition that makes the employee unable to perform the essential functions of their job;
• Any qualifying exigency because the employee’s spouse, child, or parent is a military member on active duty.

Under FMLA, a covered employer could conceivably have no eligible employees. Similarly, an employee who works for a covered employer and has a serious health condition could not be an eligible employee because, for example, they don’t work at a worksite with 50 or more employees within 75 miles.

Remote employees who otherwise qualify will be eligible for FMLA if they report to or receive work assignments from a location that has 50 or more employees within a 75-mile radius.

According to the FMLA regulations, the worksite for remote employees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” So, for example, if a remote employee working in Frisco, TX reports to their company’s headquarters in Portland, OR, and that site in Portland has 65 employees working within a 75-mile radius, then the employee in Frisco may be eligible for FMLA. However, if the site in Portland has only 42 employees, then the remote employee would not be eligible for FMLA. The distance of the remote employee from their worksite is immaterial.

I recommend proceeding with caution so that you don’t rush to judgment. First, it sounds like the information you’ve received is only a rumor and may be unreliable. Second, exercising (at the park or elsewhere) could very well be a legitimate use of leave under FMLA. For example, their doctor may have recommended moderate exercise as part of the treatment. Before confronting the employee, I would recommend that you review the information on the employee’s medical certification for FMLA and determine whether the alleged exercise appears to be inconsistent with the information on the certification.

If it appears the exercise may be inconsistent with the medical certification, I would recommend that you investigate the situation. As with any investigation, it is important that you allow the employee to provide their side of the story before reaching any conclusions. You can let them know that you have received reports that they may be engaged in physical activities during leave and ask them to confirm the extent of their current injuries or illness and how they prevent them from doing their job. If the employee cannot or will not provide an explanation or admits fraudulent use of leave, then you’d have grounds for disciplinary action.

After determining that a leave is covered by FMLA, you should begin tracking time against the 12-week entitlement. You’ll track this time in whole-week increments if the need for leave is continuous. Each week missed will be counted as 1/12th of their total entitlement.

If the employee needs intermittent leave or reduced hours, you’ll need to determine how many hours they are entitled to in total and record the time they miss on an hour-by-hour basis. To do so, you would take the number of hours that an employee regularly works in a week and multiply it by 12. For instance, if an employee is regularly scheduled to work 40 hours per week, their 12-week FMLA entitlement would be 480 hours (40 x 12 = 480). If they worked 30 hours per week, their 12-week FMLA entitlement would be 360 hours (30 x 12 = 360). If their hours fluctuate, you should go back twelve months from the start of their leave and calculate their weekly average, then multiply that number by 12.

If an employee is missing time on an intermittent basis that has not been established ahead of time (e.g. they occasionally suffer from migraines versus having a standing appointment for chemotherapy each Tuesday), make sure they know that they need to notify you when they are taking time off for an FMLA-qualifying reason. This is necessary so that you can track that time (a benefit to you) and treat it as protected (a benefit to the employee).

If an employee says that they need to miss more time than is indicated on their current doctor’s certification, you should request updated paperwork to cover additional time missed. Please note: even if you trust this employee, you might not trust the next, and you want to ensure you’re applying the same standards across the board to avoid claims of discrimination—particularly when a disability of some kind is already in play.

It’s likely the employee may enjoy protected leave under the Family and Medical Leave Act (FMLA). This federal law applies to all public agencies and any private employer with 50 or more employees. The employee will be eligible for protected leave under this Act if the employee has worked for the Company for at least 12 months in the last seven years, has worked at least 1,250 hours for the Company during the last 12 calendar months, is employed at a worksite that has 50 or more employees within a 75-mile radius and has a “serious health condition” as defined by the FMLA.

Under the FMLA, a “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

The “continuing treatment” test for a serious health condition under the regulations may be met through:
• A period of incapacity of more than three consecutive, full calendar days plus treatment by a health care provider twice,
• A period of incapacity of more than three consecutive, full calendar days plus treatment by a health care provider once with a continuing regimen of treatment,
• Any period of incapacity related to pregnancy or for prenatal care,
• Any period of incapacity or treatment for a chronic serious health condition,
• A period of incapacity for permanent or long-term conditions for which treatment may not be effective,
• Any period of incapacity to receive multiple treatments (including recovery from those treatments) for restorative surgery, or
• A condition that would likely result in an incapacity of more than three consecutive, full calendar days absent medical treatment.
If an employee claims a serious health condition under the requirement of a “period of incapacity of more than three consecutive, full calendar days and any subsequent treatment or period of incapacity relating to the same condition,” the employee’s first treatment visit (or only visit, if coupled with a regimen of continuing treatment) must take place within seven days of the first day of incapacity.

Additionally, if an employee asserts that the condition involves “treatment two or more times,” the two visits to a health care provider must occur within 30 days of the first day of incapacity. Finally, the regulations define “periodic visits” for treatment of a chronic serious health condition as at least twice a year.

The answer to this question depends on whether or not you have a moonlighting or outside employment policy. If you do not have a policy that specifically prohibits employees from working for other employers, then the fact that they are employed elsewhere during a leave is likely not caused for discipline. The FMLA regulations have addressed this directly, stating, “If the employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained.”

If you do not have a policy like this, we recommend you not discipline an employee for taking on other work. Courts have upheld an employee’s right to work for a second employer while on FMLA leave. An employee only has to show that they are unable to work in their current job because of a serious health condition in order to qualify for FMLA leave. This does not necessarily mean they are unable to perform other jobs. For instance, if the employee works a physically demanding job at Company A that they cannot perform due to a medical condition, they may still be able to work a desk job for Company B during leave.

If the employee’s position at Company B legitimately interferes with their position with your organization or creates a conflict of interest, you may be able to request that the employee cease their employment with Company B. Additionally, if their position at Company B has the same physical requirements as their position at your organization, you may be looking at a case of fraudulent use of leave. In either of these situations, you should proceed with caution; disciplining an employee who is taking protected leave can easily look retaliatory.

To be covered under FMLA, private sector employers need to employ 50 or more employees for at least 20 calendar workweeks in the current or preceding calendar year. The 20 calendar workweeks do not need to be consecutive.

When counting your employees, you would include any employee whose name appears on your payroll on any working day of the calendar week, regardless of whether they received compensation for the week.

Once your organization meets the 50 employees-for-20 workweeks threshold, it remains covered until it reaches a point at which it no longer employed 50 employees for 20 (non-consecutive) workweeks in the current and preceding calendar year.

In general, when an employee is out, I recommend informing coworkers only that the employee is on a leave of absence. The reasons for the leave are not any of the coworkers’ business, and the employee might not want the reasons known by others. Moreover, sick leave, family leave, and disability laws often specifically protect this information.

In this case, since this employee has specifically asked you to inform the other employees that she will be out on a “family care” leave, and you have this request from the employee in writing, you should be fine sharing this information. In the absence of any such written request from an employee, however, I would recommend defaulting to stating only that an employee is off work on a leave of absence, letting the employee share additional information at their discretion.

A holiday party can be a great way to celebrate the year with employees, but it can come with risks. We recommend the following best practices:

• Unless you intend to pay employees for their time at the event, make attendance optional. Employees should not feel pressured in any way to attend.
• Avoid conducting any work-related activities at the event, such as award presentations or company updates. To further support the non-work nature of the event, hold it outside of work hours and, if funding and practical considerations allow, off-site with the opportunity for employees to bring a guest.

Getting employees who don’t like each other to work well together can be challenging, but here are several steps you can take to improve the situation:
• Investigate the cause or causes of the conflict. It’s easy to jump to conclusions about what is happening. Speak to the employees involved and try to understand the tension between them. Is it a personality clash, a misunderstanding, or a difference in working style? Once you understand the cause, you can work to address it and find a solution.
• Encourage the employees to communicate openly with each other. You may need to facilitate a conversation to help them understand what open communication is like. If your employees are struggling to communicate openly, they may benefit from training in effective communication, including active listening and conflict resolution.
• Set clear expectations for behavior and performance, and make sure everyone is on the same page. Create a shared vision for the team and encourage everyone to work towards that common goal. Tell your employees that they don’t need to be friends, but they do need to be able to work together and should be professional in the workplace.
• Lead by example. Model open communication and positive conflict resolution with your teams and peers.
• Follow up to ensure that the solution is working and that your expectations are being met.
• If one or more of your employees continues to not meet your behavioral and performance expectations, it would be appropriate to discipline them, up to and including termination.
You can find more helpful hints for conflict resolution on the platform.

It’s great to create a workplace where people have the opportunity to form friendships, but don’t worry if not everyone shows interest in befriending their coworkers.
Friendships at work can be a way for employees to feel connected and that they belong in the organization. A Gallup poll from 2022 found that having a best friend at work provides essential emotional and social support that people need and ties strongly to key business outcomes.
You can encourage friendships in the workplace by scheduling time during the workday for employees to get to know each other. Team lunches, game rooms, and coffee outings are popular options. Video chats—just to connect, without an agenda—are common in remote organizations. Another way to encourage friendships is to make it clear that employees are allowed to share about their personal lives as they feel comfortable, such as encouraging employees to decorate their office space with personal items or leaders sharing about their lives.
Even with the benefits of having friends in the office, it’s important to remember not everyone wants to make friends at work. Some employees would prefer not to socialize much with their coworkers, and they can be just as productive and engaged. Don’t exclude or marginalize employees who don’t participate in the social activities, and don’t inquire as to why they don’t. In general, while encouraging employees to form friendships can have many benefits, you need to do so in a way that respects all employees’ preferences.

This Q&A does not constitute legal advice and does not address state or local law.

First, let this employee know that you support her and ask her how she defines support, i.e., what support she’d like to receive. Then ensure she receives fair and equal treatment in the workplace. Trans individuals are often the victims of workplace harassment. According to the National Center for Transgender Equality, “more than one in four transgender people have lost a job due to bias, and more than three-fourths have experienced some form of workplace discrimination.”

You can also support your trans employee by stressing your commitment to equal employment and related protections. Affirm her right to express her gender freely and without discrimination. Use her correct pronouns and new name if she’s chosen one. Encourage her to choose what restroom she wants to use. And ask her what details she’d like shared with her colleagues and whether she’d like her email and other company profiles updated.

You won’t be able to modify legal documents like the I-9 unless she legally changes her name, but you can ask her if she’d like changes made to any non-legal documents. You do not need, and she should not have to provide, any medical or legal documentation of her gender identity.

If you or she have concerns about discrimination, it might be beneficial to remind employees about your prohibitions on harassment, relevant company policies, equal employment opportunity, and expected behavior. You might also consider adding a transgender-inclusive policy in your handbook. We have one available in the HR Support Center.

Offering an accommodation—which in this case would simply be an exemption from the policy—is generally the best option when it comes to religious tenets that conflict with dress or appearance policies. If you have concerns about sanitation, the employee can certainly be asked to wear a beard or hair net if that is something you expect from all employees with longer hair.

For some legal background, Title VII of the Civil Rights Act of 1964 protects employees against religious discrimination. The Equal Employment Opportunity Commission (EEOC), which is the government agency that enforces this law, requires that employers offer reasonable accommodations to employees whose sincerely held religious beliefs conflict with workplace policies or guidelines, so long as those accommodations would not create an undue hardship on the employer. It is unlikely that allowing certain individuals to wear beards would create that kind of hardship.

With respect to your policy generally, it’s worth noting that a number of states have recently passed laws that protect natural hairstyles, or, more broadly, traits associated with race. In light of this, and the need to accommodate religious beliefs, you may want to rework your policy so that it focuses on cleanliness and generally accepted good-grooming habits rather than hair length, location, or style.

There’s no law against it, but some employees may feel that announcing their birthday violates their privacy. While it’s great that you want to recognize your employees and celebrate with them, I recommend not announcing an employee’s birthday without first getting their permission.

In the case of announcements on public social media, I would get a signed acknowledgment that the employee has given you permission to share their birthday and that their doing so is completely voluntary. Announcing birthdays on public social media pages is a little riskier because these posts can be seen by everyone.

You could instead make the announcements internally (still with permission). Popular approaches include email, newsletter, or intranet. Many offices have a birthday celebration each month and announce the employees who have birthdays during that month without mention of their exact birthday. This is a way to celebrate employees and increase morale without putting any given employee in the spotlight.

There is! Here are a few things you can do to make the busy season run as smoothly and stress-free as possible:

Remove or reassign non-essential work duties:

Before the busy season begins, ask employees to make a list of tasks that others could feasibly handle for them or that could be put on hold. Then work on reassigning those tasks or simply hold off on non-essential tasks until business slows down.

Allow for flexible scheduling:

If employees need to work longer hours on some days during the week, consider allowing them to work fewer hours other days of the week. Be aware, however, that some states have daily overtime laws.

Budget for overtime:

Employees may need to work extra hours to get their job done, so allow them to work overtime if you (and they) can swing it. If you’re pretty sure overtime will be necessary, try to make sure employees know that ahead of time, so they can plan accordingly.

Ensure all equipment is fast and reliable:

It’s important to identify, troubleshoot, and correct any slow or non-working equipment issues (whether laptops, cash registers, or vehicles) before employees get slammed with extra work. Do preventative maintenance to take one less stressor out of the busy season.

Yes, alcohol can be a liability. Partygoers who overindulge could cause an accident or act in ways that violate your harassment policy. Here are some practices you might consider:

• Employers may be liable for employee misconduct and negligence when the employee is acting “in the course and scope of employment,” so make these kinds of events optional and clearly communicate that attendance is neither expected nor required.
• Don’t plan to have any work-related activities at the event.
• To further support the non-work nature of the event, hold it off-site and outside of regular business hours, and allow employees to bring a guest.
• Set expectations around respectful behavior and encourage employees to drink responsibly.
• Remind employees that company policies, including harassment and other conduct policies, apply at the event.
• Have a plan to ensure that no minors or visibly intoxicated attendees are served alcohol.
• If possible, hire professional servers (or hold the event at a staffed facility) who will, as part of their job, politely refuse to serve anyone who they perceive has had enough to drink.
• Provide ample food and non-alcoholic beverages, both for safety reasons and so non-drinkers know you’ve given them consideration.
• Offer a cash bar where employees purchase alcohol. This will reduce the likelihood of a claim that the employer-provided alcohol directly to employees. It will also reduce consumption.
• Provide employees with a set number of drink tickets so that each attendee is limited in the number of alcoholic drinks they will be served.
• Plan for how employees who have been drinking will get home. This may involve providing taxis, rideshares, or public transit options at no cost to the employees, arranging for group transportation, or encouraging employees to designate a driver at the beginning of the event.
• Even if you don’t want or plan to provide a taxi or ride-sharing service, don’t think twice about calling and paying for one if an intoxicated employee has no way home other than driving themselves. To facilitate this, someone from management can be designated to stay until the end and maintain their own sobriety to ensure that everyone gets home safe.
  While these steps will not eliminate all the risks, they can help reduce liability and help your employees celebrate the year and their achievements safely and responsibly.

Yes, you may prohibit visible tattoos entirely or you may simply prohibit those that are offensive, distracting, inappropriate, or over a certain size.

Tattoo policies usually depend on the culture of the workplace and are often found within a broader dress code policy. Some employers avoid restrictive dress codes because they may deter impressive job candidates from applying or drive away high-performing employees. Employers who want to maintain a certain company image, however, might prefer a strict dress code. Striking a middle path is also an option—something like “Tattoos must be appropriate and in keeping with a professional image.”

When creating your policy, make sure it doesn’t discriminate based on a protected class. This would include, for example, making religious accommodations. You should also be sure to communicate your reasons to employees and apply the policy consistently (while allowing for required exceptions).

No, you’re not required to provide additional breaks to employees who smoke, and you also don’t have to tolerate them smelling like smoke. These employees can be expected to adhere to the same policies as any other employee. To that end, if you allow for a certain number of breaks of a certain length, employees who smoke aren’t entitled to anything extra. And if you have a policy that addresses smells, you can refer to that when addressing the odor of cigarettes.

If you don’t have specific policies addressing breaks and smells, there’s no time like the present to implement them. Break policies are fairly straightforward, but employers sometimes struggle with delicate issues like hygiene. We recommend saying something like, “The excessive use of perfume or cologne is unacceptable, as are odors that are disruptive or offensive to others or may exacerbate allergies.” This language can be added wherever you think is most appropriate; we fold it into the Personal Appearance and Hygiene policy.

You should address the poor hygiene directly with the employee. A sensitive and straightforward approach is usually best.

If this will be your first conversation with the employee about their hygiene, then there shouldn’t be any need for discipline. Simply explain to them how their hygiene is affecting the workplace, citing any relevant company policies. A private location is best for this conversation.

Avoid trying to figure out the cause of the bad hygiene or offering suggestions for how to improve it. Instead, focus on expectations, and leave it to the employee to figure out how to meet them. On rare occasions, bad hygiene may be the result of a disability or the consequence of a religious preference. If the employee indicates that their hygiene relates to one of these, please let us know.

As with any policy, the big thing to keep in mind is that you’ll have to enforce it consistently and address any violations. In general, I recommend employers consider the following when creating a dress code:

• Be clear about things you don’t want to see in the workplace. Employees may not know what vague terms like “business casual” mean, so if you don’t want them wearing sandals, shorts, sleeveless shirts, etc., say so.
• Avoid gender-based rules. These could expose you to discrimination claims.
• Avoid rules that require a ruler (e.g., skirts must be no more than two inches above the knee). Enforcing these could prove uncomfortable for both managers and employees.
• Consider different rules for different positions or departments. It would be reasonable, for example, to have stricter rules for customer-facing positions.
• Consider the culture of your workplace and where you’d like to take it. If you have and want to maintain a fun, casual culture, you should probably avoid a dress code that requires formal attire.

Employee retention is one of the most difficult and expensive challenges faced by business owners, managers, and HR departments. Fortunately, the keys to retention are simple and straightforward, though certainly easier said than done. The following three practices are essential:

• Pick the right people in the first place. Put thought and care into your recruitment and interview procedures. The more time you and other employees can spend with candidates, the surer you’ll be that they believe in your mission, understand the challenges and frustrations of the position and want to contribute to your success.
• Make sure your compensation and benefits remain competitive. This is a tall order and may squeeze your bottom line in ways that make you uncomfortable, but it’s necessary if retention is at the top of your priority list. Make it a goal to do a yearly analysis of your total compensation package to ensure that it’s at least keeping up with the market. Many employers who know they can’t offer competitive pay offer other compelling benefits, like generous PTO and the ability to work from home.
• Be appreciative. A little gratitude can go a long way. And you can show it in multiple ways – from flexibility when employees need it, to a willingness to hear out ideas, to employee appreciation programs. Even a simple thank you can work wonders.

Yes, you can tell employees not to dye their hair, but there are a few things to consider before doing so.

Employers generally have the right to set guidelines with respect to professional appearance. Brightly-colored hair is not a protected trait or class (e.g., race, sex, age). However, if it was part of religious practice or common in a particular ethnicity, an employer would want to consider whether it would be appropriate to make an exception or accommodation. If neither of these was the case, there would be no issue enforcing a policy prohibiting brightly-colored hair.

Keep in mind, however, that creative hair colors are more common and socially acceptable today, even in professional settings. Prohibiting brightly-colored hair could make it more difficult to find or keep talented employees. It’s generally best to have a sound business reason for your dress code and appearance policy.

If you decide to implement a policy like this, make sure that your managers apply it consistently. Allowing one employee to have pink hair—when not a religious or other thought-out exception—but not another, could create workplace drama and even open you up to discrimination claims.

Employers may not prohibit, or even discourage, employees from discussing their wages with one another. Likewise, employers may not in any way discipline or retaliate against an employee for discussing their wages or other terms and conditions of employment. Prohibitions of this nature infringe upon employees’ protected rights under Section 7 of the National Labor Relations Act (NLRA).

The NLRA grants all employees (not just those in unions) the right to organize and engage in “concerted activity . . . for the purpose of mutual aid or protection.” This includes discussions about wages, benefits, managers, facilities, safety issues, and just about anything else that two or more employees might have a stake in or opinion about. As a result, the protections provided by the NLRA are broad. Here are a few examples of protected activity:

• Employees discussing how much they are being paid, whether via email, break room chat or a conversation on someone’s Facebook wall;
• Individual employee complaints regarding wages or employment conditions, if they reflect general workforce discontent or are attempting to elicit the support of co-employees to correct a problem;
• Employees discussing improving working conditions with other employees;
• Circulating a petition asking for better hours;
• Participating in a concerted refusal to work in unsafe conditions;
• Employees join with co-workers to talk directly to the employer, to a government agency, or to the media about problems in the workplace.

The National Labor Relations Board (NLRB), which rules on cases related to NLRA violations, has been saying loud and clear – since the 80’s – that discussion of wages is an absolutely protected right. Distributing or enforcing a policy to the contrary is akin to having a policy that says the employer doesn’t pay minimum wage or overtime. We strongly recommend that employers immediately eliminate any written or unwritten policy telling employees that discussion of wages is discouraged or prohibited, or that wages are confidential, and also discontinue any written or unwritten policy of disciplining or terminating employees for this behavior.

Yes, we recommend obtaining written consent from employees before posting pictures of them on company websites or social media.

Using someone’s picture without their consent could violate their right to privacy. Some employees may have reasons for not wanting the public to know where they work (for example, if they are the victim of stalking), or they simply may not feel comfortable having an image of their face published online.

When obtaining consent from your employees, let them know how you intend to use photos of them and that they should sign the authorization only if they feel comfortable doing so.

Yes, alcohol can be a liability. Partygoers who overindulge could cause an accident at or after the party, or they might act in ways that violate your harassment policy.

There are steps you can take to protect both yourself and your employees. Here are some practices you might consider:

Ahead of Time

• Employers may be liable for employee misconduct and negligence when the employee is acting “in the course and scope of employment,” so make these kinds of events optional and clearly communicate that attendance is neither expected nor required.
• Don’t plan to have any work-related activities at the event. To further support the non-work nature of the event, hold it off-site and outside of regular business hours, and allow employees to bring a guest.
• Set expectations around respectful behavior and encourage employees to drink responsibly. Remind employees that company policies, including harassment and other conduct policies, apply at the event.
• Have a plan to ensure that no minors or visibly intoxicated attendees are served alcohol. If possible, hire professional servers (or hold the event at a staffed facility) who will, as part of their job, politely refuse to serve anyone who they perceive has had enough to drink.

At the Event

• Provide ample food and non-alcoholic beverages, both for safety reasons and so non-drinkers know you’ve given them consideration.
• Offer a cash bar where employees purchase alcohol. This will reduce the likelihood of a claim that the employer-provided alcohol directly to employees. It will also reduce consumption.
• Provide employees with a set number of drink tickets so that each attendee is limited in the number of alcoholic drinks they will be served.
• Plan for how employees who have been drinking will get home. This may involve providing taxis or public transit options at no cost to the employees, arranging for group transportation, or encouraging employees to designate a driver at the beginning of the event.
• Even if you don’t want or plan to provide a taxi service, don’t think twice about calling and paying for one if an intoxicated employee has no way home other than driving themselves. To facilitate this, someone from management can be designated to stay until the end and maintain their own sobriety to ensure that everyone gets home safe.

While these steps will not eliminate all the risks, they can help reduce liability and help your employees celebrate the year and their achievements safely and responsibly.

Depending on the nature of the relationship, how you handle workplace romances is mostly up to your organization’s preference or policy.

If the employees do not report to one another and are engaged in a mutually consenting relationship, no action may be needed. Some organizations prefer to ban office dating, but I find this difficult or impossible to enforce and often not worth the time and effort. It can also create a Big Brother-like feeling, reducing trust between management and employees, and often forcing relationships to be kept secret. Some employers choose to use a “Consensual Relationship Agreement” when they know employees are dating, which establishes that both parties are part of the relationship by choice, and lays out some ground rules for how to behave.

Instead of either of these, I recommend communicating to the employees your relevant workplace policies (e.g. harassment) and your expectations regarding behavior in the workplace and leaving it at that. In most cases, the less time management spends delving into employees’ personal lives, the better.

That said, I do recommend prohibiting managers from dating subordinate employees as a standard policy, even if layers of management separate them. There could be issues with preferential treatment and complaints of harassment if the relationship ends. These situations could expose your organization to increased risk.

If you decide to prohibit all employee dating, be careful when wording your policy. Outright “non-fraternization” policies have the potential to violate Section 7 of the National Labor Relations Act, which protects employees’ rights to engage in concerted activity. Courts have found that the use of the word “fraternize” without additional explanation could potentially discourage employees from exercising their rights, so I recommend language that specifically refers to “employee dating.”

You do not need to have a specific policy on service animals for your employees. If a request comes up, I would recommend relying on your disability accommodation process and engaging in the interactive process.

First, determine if the employee has a covered disability as defined by the Americans with Disabilities Act (ADA). The best way to do this is to provide the employee with a medical inquiry form that they can have completed by their doctor. This form will help you ascertain what accommodation the employee needs to do their job and whether you, as the employer, can accommodate it or suggest alternatives.

If the employee is not disabled as defined by the ADA, you are not required to allow them to bring an animal to work. But if they provide documentation supporting their need for a service animal, you should attempt to accommodate the employee. Note that the ADA is very broad in its definition of a disability, which is why we recommend that you rely on the medical opinion of your employee’s doctor to determine whether or not a disability exists.

While emotional support animals, comfort animals, or therapy animals (I’ll call them all support animals) are often used as part of a medical treatment plan, they are not considered service animals under the ADA. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. As a result, their presence is not considered a reasonable accommodation, even with a doctor’s note.

When an employee requests permission to bring a service or support animal to work as a reasonable accommodation for a disability, the employer should recognize that the only basis for denial of this request is:

• The employee is not a qualified person with a disability as defined by the ADA, the Rehabilitation Act, or state law;
• The animal does not meet the definition of a service animal in the ADA or other relevant law;
• The presence of the service animal would place an undue burden on the employer; or,
• The presence of the service animal would interfere with the employer’s ability to conduct business.

Possibly, but not necessarily. It sounds like this manager’s abrasive and rude manner has made employees feel uncomfortable and affected morale. It’s worth addressing on those grounds alone, but whether it creates a hostile work environment depends on a few additional factors.

A hostile work environment occurs when unlawful harassment in the workplace either becomes a condition of continued employment or becomes severe or pervasive enough that a reasonable person would consider the work environment intimidating, hostile, or abusive.

For workplace harassment to be unlawful, it must be unwelcome and based on a protected class such as race, age, religion, national origin, disability, genetic information, or sex (which includes pregnancy, sexual orientation, and gender identity). In other words, unlawful harassment is unlawful because it’s unwelcome and discriminatory.

So, if this manager is yelling and insulting only female employees or those of a specific ethnic group, then the behavior would likely be creating a hostile work environment because it’s both unwelcome and based on a protected class. If the manager is rude to everyone, or his bad behavior doesn’t seem to be aimed in any particular direction, then you likely don’t have a hostile work environment in the eyes of federal employment law – simply a problem employee.

In any case, don’t make assumptions one way or the other until you’ve had a chance to investigate (which you should do promptly). Federal law not only prohibits discrimination, but obligates employers to prevent and stop harassment when it’s based on these protected characteristics, whether it’s coming from supervisors, peers, or even customers.

For more information about conducting an investigation, see our Harassment Investigation Guide on the Support Center!

Yes! Here are a few things you can do to make the busy season run as smoothly and stress-free as possible:

Remove or reassign non-essential work duties: Before the busy season begins, ask employees in your department to make a list of tasks that other departments could feasibly handle for them. Then work on transitioning those tasks or simply hold off on non-essential tasks until things slow down.

Allow for flexible scheduling: If employees need to work longer hours on particular days, consider, if possible, allowing them to work fewer hours other days of the week. But be aware that some states, like California, have daily overtime laws.

Budget for overtime: Employees may need to work extra hours to get their job done, so allow them to work overtime if you (and they) can swing it. And if you’re pretty sure overtime will be necessary, try to make sure employees know that ahead of time, so they can plan accordingly.

Ensure all equipment is fast and reliable: Before an employee will be putting in a lot of work, have the IT team do a little maintenance on their computers and other commonly used devices. It’s important to identify, troubleshoot, and correct any slow or non-working issues before the employee gets slammed with work. It’s also important to make sure IT knows that if an extra busy employee begins experiencing technical issues during the busy season, their issues should be expedited.

The short answer is yes, you can monitor employee email. As a general rule, employees should not have an expectation of privacy when using company computers or email accounts. That said, the law is not perfectly cut and dry, so you should have both a legitimate business reason for doing so and a policy that puts employees on notice that you do – or could – review their email.

If you decide to monitor employee email, I recommend that you review your handbook policies, especially any that address company equipment or email usage. You should include a policy that says something along the lines of, “All Company-supplied technology, including computer systems and Company-related work records, belong to the Company and not the employee. The Company routinely monitors usage patterns for its email and internet communications. Although encouraged to explore the resources available on the Internet, employees should use discretion in the sites that are accessed.”

If you monitor company email, you should also be consistent in how you do so. For example, if you’re routinely reviewing emails to ensure that employees aren’t conducting personal business on company time, I would recommend that you do so for all employees or everyone in a specific department.

Employers typically decide what amount and type of personal items are appropriate based on the culture of the organization. In a workplace that needs to maintain a formal and professional image — perhaps because it has frequent visitors — the employer may want individual workspaces to look neat and tidy. Casual workplaces probably don’t need the same restrictions. Basically, it comes down to what you’re comfortable allowing.

Unless there is an ongoing problem with what employees are putting in their work areas, I recommend against having a specific policy on the matter. Flexibility is often best as it allows employees to be creative and make their workspaces their own. For what it’s worth when there are things in the workplace to psychologically interact with (like plants, personal photos, and art), employees tend to be more productive and engaged.

Of course, you’d want to prohibit anything that is harassing, offensive, or causes a workplace distraction. These prohibitions, however, should already be covered in your code of conduct and harassment policies.

The short answer is no. There’s no legal requirement to review all the applications before moving forward, and you can always return to the applicants who applied later to review them if needed. Having said that, we do recommend reviewing every application.

Yes, you can have a working interview as part of your selection process, but there’s a big caveat. If you have the candidate do “real work” that is useful to your business, you’ll need to hire them as a temporary employee, have them complete new hire paperwork, pay them at least the minimum wage, and then jump through any termination hoops if you don’t hire them. You can’t lawfully classify them as an independent contractor for this purpose.

It’s up to you. Conducting a background check when hiring a former employee would keep the process simple and straightforward. Every exception you add to a process gives you something else to remember—and potentially forget!

Yes, you can have a working interview as part of your selection process, but there’s a big caveat. If you have the candidate do “real work” that is useful to your business, you’ll need to hire them as a temporary employee, have them complete new hire paperwork, pay them at least the minimum wage, and then jump through any termination hoops if you don’t hire them. You can’t lawfully classify them as an independent contractor for this purpose.

Reference checks help you verify the employment information candidates provide, but they aren’t required, so it’s up to you whether you want to do them. Here are some practices we recommend if you do choose to conduct reference checks:

• Get permission from candidates to contact references. This should be part of the application process and can be a simple yes/no question.
• Determine at what point during the hiring process you will perform reference checks. Checking references earlier in the process may help you decide which candidates to interview, but it usually means doing a lot more of them. On the other hand, waiting until after a conditional offer has been made may slow the process down if you find reason to rescind the job offer. Some employers choose the middle ground and do these checks only for final candidates.
• Decide how much information you want to obtain in the reference check but be prepared for many employers to have a policy of doing no more than confirming the dates the candidate was employed with them.
• Be consistent. Do the checks at the same time in the process and for all candidates applying for similar positions.
• Ask objective, job-related questions. Be aware that some states prohibit inquiring about salary history, though we don’t recommend asking even if it is permissible.
• Document the responses and keep them with your other recruiting and interviewing materials.

While weight in and of itself is not a protected characteristic under federal law, making a hiring decision on this basis is inadvisable. Hiring decisions should be based on how well a candidate meets the qualifications outlined in the job description and applicable job posting. Disqualifying a candidate based on anything other than the job’s necessary qualifications increases the likelihood of a discrimination claim (in the case of weight, a disability discrimination claim is most likely).

We recommend that you ensure job descriptions are updated with the current skills, abilities, and education needed to perform the job, including the mental and physical requirements. You should also carefully go over the job description with candidates—including the day-to-day duties of the position—during the interview process so they fully understand what will be expected from them.

It’s ultimately up to you, but we’d generally recommend that you honor the request. The candidate may have a good reason for asking you not to contact their current employer. They may fear retaliation if their manager gets wind of their interest in leaving, or they may have a toxic boss who wouldn’t give an accurate assessment of their ability to do the job.

If you wish to contact the current employer despite the candidate’s request, inform the candidate of your decision beforehand and explain what questions you will be asking their employer (dates of employment, job title, etc.). The candidate may opt to let you go ahead with the reference check or they may decide to withdraw themselves from consideration instead of having you reach out. It’s best that they be the one to make this call, especially if contacting their current employer could have negative repercussions for them.

You should avoid questions that are not job-related or that cause an applicant to tell you about their inclusion in a protected class. These would include questions about race, national origin, citizenship status, religious affiliation, disabilities, pregnancy, sexual orientation or gender identity, past illnesses (including use of sick leave or workers’ comp claims), age, genetic information, or military service. You should also avoid asking about things that might be protected by state law (e.g., marital status and political affiliation).

Asking these sorts of questions could result in rejected candidates claiming that the decision not to hire was based on their inclusion in these protected classes rather than job-related considerations. We recommend looking at your state’s protected class list to be sure you don’t run afoul of it.

During an interview, it is advisable to present the candidate with a copy of the job description that lists all essential job functions, including any physical requirements necessary to perform the job, and simply ask the candidate if they are able to perform the job duties listed. For example, if the position requires someone to lift 25 pounds repeatedly throughout the day, you should ask the applicant whether they can lift 25 pounds repeatedly throughout the day. You should not ask whether they have back pain or any other physical issues that might prevent them from lifting 25 pounds or if they’d filed a workers’ comp claim when doing manual labor in the past. If you need someone to work Sunday mornings, you should ask the applicant if they can work Sunday mornings. You should not ask if they attend church or have other commitments that would prevent them from working Sunday mornings.

If a candidate proactively acknowledges a disability or medical condition, we recommend that you refrain from addressing this candidate’s mention of it directly. Instead, confirm that the candidate can perform the essential functions of the position with or without reasonable accommodation. You’ll want to be certain that you are asking this question consistently of all candidates, and not just those who have disclosed a past medical condition or those you suspect may not be able to perform the essential functions of the position. It’s also important not to make assumptions about a candidate’s ability to perform their job based on their having disclosed that they have a disability or other health condition.

Finally, unless a candidate has an obvious disability or has voluntarily disclosed that they have a disability, we would not recommend asking applicants if they would need an accommodation to perform job functions as it would have the effect of creating a pre-employment disability inquiry, which is prohibited under the Americans with Disabilities Act (ADA).

Yes, you can ask applicants why they are leaving their current job. The employment application is a good place to collect this information. In the section where the applicant lists their previous employment experience, you can ask for the reason they left each job. Trends you notice may be cause for follow-up questions during the interview or a reason not to schedule an interview at all.

If you ask about previous or current employment during the interview, be mindful of the direction the response goes. As with any interview question, you should redirect the candidate if they start to share sensitive information. For example, if a candidate says they left past employment due to medical reasons, don’t ask for details about their condition. Instead, you could ask whether they provided notice of their need to resign and whether they left on good terms.

Unless you are a federal contractor, you are not required to have an EEO statement in your job postings. Some employers who are not federal contractors opt to include an EEO statement as a sign to applicants that they take diversity seriously, although there is some question as to whether such statements actually deter people of color from applying.

Employers with federal contracts of $10,000 or more are, however, required to provide notice in job advertisements that qualified applicants will receive consideration without regard to their race, color, religion, sex, sexual orientation, gender identity, and national origin. If the federal contract is $15,000 or more, the notice must also mention disability, and if the federal contract is $150,0000 or more, the notice must include status as a protected veteran.

No. You can absolutely specify both an anticipated end date for the employment relationship and that the employment is at-will, and I would recommend communicating both in the offer letter. That way there’s no confusion about the nature of the relationship, and it’s clear that employment will most likely conclude at the expected end date and that neither the employer nor employee is bound by contract to finish out the assignment.

Likely not. The IRS, the U.S. Department of Labor, and state agencies have specific criteria for determining who is an employee and who is an independent contractor. These criteria focus on the overall relationship workers have with their employer, with attention to who controls when, where, and how the job gets done, along with who has the opportunity for financial profit or loss. The timespan of employment is not one of those criteria.

We recommend you review the criteria in light of what the role will be, but based on what you’ve said, the person hired will probably be an employee.

You can learn more about the rules around independent contractors on the HR Support Center.

You can keep or discard unsolicited resumes, but your practice should be consistent. Keeping some while discarding others could open you up to discrimination claims if your hiring decisions were ever challenged.

If you’re feeling overwhelmed by the number of unsolicited resumes you’re receiving, you can try to discourage job seekers from sending them by posting on job advertisements and on your careers page that you don’t accept unsolicited resumes. When you do receive them, don’t review them—simply delete the file or email or shred the document.

If you opt to keep unsolicited resumes, we recommend you maintain them for the time you would keep solicited resumes, or at least one year (two if you’re a federal contractor).

You can extend an introductory period, but I would recommend a different approach. I’d also advise against using the word “probationary.” I’ll explain both points.

Extending the Introductory Period
First things first, be aware that having an introductory period for new employees has no legal impact on the employment relationship. Terminations during that time still come with risk (so problems should be discussed and documented) and terminated employees can still file for unemployment insurance. Extending the introductory period doesn’t mitigate risk or affect your rights and responsibilities as an employer.

If a new employee has reached the end of their introductory period and they aren’t performing up to your expectations—but you still think they have potential—I’d recommend implementing a Performance Improvement Plan (PIP). This kind of plan allows you to detail the company’s expectations with respect to their performance and will provide for follow-up meetings to discuss the employee’s progress. Upon the conclusion of the PIP, you make a decision as to the employee’s continued employment.

Probationary v. Introductory
We strongly recommend using the word “introductory” instead of “probationary” for a few reasons. First, probationary has a punitive ring to it, and sounds a bit like the employee is already in trouble even though they’ve just started working for you. Second, and perhaps more importantly, at least one court has ruled that the term “probationary period” implies greater employment rights upon the completion of the period. Essentially, its use could interfere with the at-will relationship between the company and employees. For these reasons, we suggest using the term “introductory period” instead.

Some companies choose to review the social media accounts of job candidates, usually with the hope of spotting any red flags or assessing “cultural fit,” but we recommend against doing so.

First, it creates extra risk. You could be exposed to information about the candidate’s protected classes, such as their race, age, or religion. If your ultimate hiring decision was challenged, you would need to prove that those characteristics were not a factor in your decision.

Second, your application and interview process should provide you with sufficient information to determine whether a candidate is qualified and would contribute to your culture. You shouldn’t need to get into the private lives of candidates to determine whether they’re the right person for the job.

You may conduct a background check for this job even though you haven’t done one for others. You can elect to run a background check on only certain positions based on the nature of a position, but you’ll want to be consistent for all individuals in a specific position. if you only ran a check on this candidate, that could certainly appear discriminatory. Additionally, as a best practice, we recommend that background checks be done after a conditional offer of employment has been made.

In this case, it would be logical to look for and consider DUIs, traffic tickets, and any convictions related to the work the candidate would do for you. We would recommend, however, against making a hiring decision based on convictions or other information that are not relevant to the job. If you receive results that you believe would preclude an employee from working for your company, it’s very important to allow the employee to dispute the negative information before you make any decisions.

If you decide to do a background check, there are state and federal laws governing when and how they should be done, which you can learn more about on the Laws pages in the HR Support Center.

All new employees must complete Section 1 of Form I-9 on or before their first day of employment. Then, within three business days of their start date, they should submit acceptable proof of their identity and eligibility to work in the United States.

As the employer, you should complete Section 2 within those same three business days. If the duration of the job will be fewer than three days, you should complete Section 2 no later than the first day of employment. Section 2 is generally done at the time the employee brings in their identifying documents, as it asks for specific information about these forms of identification.

You can discard unsolicited resumes or keep them, but your practice should be consistent. Keeping some while discarding others could open you up to discrimination claims if your hiring decisions were ever challenged.

If you don’t want to receive or keep unsolicited resumes (which is safest from a liability standpoint), you should post on your job advertisements that unsolicited resumes will not be accepted. When you do receive them, don’t review them—simply delete the file or email or shred the document. If you opt to keep unsolicited resumes, you should maintain them for the time you would keep solicited resumes—one year (or two, if you’re a federal contractor).

Candidates must be paid at least minimum wage for working interviews, but don’t need to be paid for skills assessments as long as they involve no work that will be useful to your organization.

During a working interview, you ask the candidate to work alongside a high-performing employee or complete tasks that are a benefit for your organization. The employee or you can then evaluate the candidate’s skill within a real-life working environment. The downside to a working interview is the need to have the candidate complete an I-9 and W-4, as the candidate’s working time must be compensated.

In contrast, skills testing involves setting up a scenario separate from the work done in your organization that tests whether the candidate has the skills required to do the job. It does not require compensation. For example, you could provide a candidate with old payroll information, assign them a task with that information to do at home, and then assess their work for accuracy. This would be an acceptable unpaid skills test. Other common skills testing includes writing samples, cognitive skills assessments, or other small tasks associated with the type of work the candidate would perform if hired.

When using skills assessments, you generally want to make sure that the amount of time it will take to complete the exercise is reasonable – around an hour or so, not a full day. Also, typically only finalists for the position should be asked to complete such exercises.

We have more information on the HR Support Center about working interviews and skills assessments. Type Working Interviews and Alternatives in the search box to find additional resources.

A position requiring a high volume of business travel or unusual work hours should have that detail included in the job description. Without that, you’ll attract a lot of candidates that ultimately won’t be able to take the position, wasting both your time and theirs.

The most important aspect of an effective job description is that it accurately reflects the actual work you need to be done. This helps ensure that the company is attracting appropriate candidates for the position, that both the employee and employer are aligned in their expectations, and that the employee clearly understands and has agreed to the requirements necessary to successfully complete the job.

According to the U.S. Department of Labor, there are certain requirements that must be met when taking on unpaid interns. These requirements are intended to ensure that the intern is receiving a valuable learning experience rather than providing free labor. Be aware that workers cannot waive their right to be paid, even if they are begging to work for free to gain experience. Unless all the following criteria are met, the intern is an employee who must be paid the minimum wage and overtime and receives all of the other protections guaranteed by federal and relevant state wage laws.

The Department of Labor uses the following six criteria to determine if someone is an unpaid intern:

• The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
• The internship experience is for the benefit of the intern;
• The intern does not displace regular employees, but works under close supervision of existing staff;
• The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion, its operations may actually be impeded;
• The intern is not necessarily entitled to a job at the end of the internship; and
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist under the Fair Labor Standards Act (FLSA), and the Act’s minimum wage and overtime provisions do not apply to the intern. However, if the employer does not correctly classify the intern, then unpaid wages, penalties, and tax issues could result. It is also important to note that a number of workplace protections (such as the ADA) apply to interns and employees alike.

And as is true when classifying any worker as a non-employee, you’ll want to check state law for additional requirements. California, for instance, requires that the application process be different than it is for employees, that the internship is clearly advertised as educational rather than geared toward future employment, that the training is part of an educational curriculum (rather than just similar to one), that the training not be overly-specific to the employer, and that the intern receives no employee benefits.

There is a risk in rejecting the candidate based on their accent, as this may be perceived as national-origin discrimination, which is illegal under Title VII of the Civil Rights Act. The Equal Employment Opportunity Commission (EEOC) enforces Title VII, and says the following regarding accent discrimination:

In assessing whether an individual’s accent materially interferes with the ability to perform job duties, the key is to distinguish a merely discernible accent from one that actually interferes with the spoken communication skills necessary for the job.

“Materially interferes” is the standard that will apply, but we don’t have a hard and fast definition of what that means. If you are confident that the candidate’s accent will actually prevent them from performing the functions of the job, then you could eliminate them on that basis. But if you are only speculating that it could be a problem, or are thinking it might rub other employees the wrong way, it should not be a basis for your decision.

For instance, if you were hiring for a receptionist who will interact frequently with clients on the telephone, and you had to ask the candidate to repeat themselves multiple times during the interview because they were legitimately difficult to understand, then the accent would likely be an acceptable reason to eliminate that candidate. On the other hand, if you were hiring for a dishwasher, delivery driver, software programmer, or other position where oral communication was less essential, then the accent would not be a valid reason to reject the candidate.

According to IRS guidelines, it is possible to have a W-2 employee who also performs work as a 1099 independent contractor so long as the individual is performing completely different duties that would qualify them as an independent contractor.

Some legitimate examples that we have seen of this circumstance are:
• A Receptionist also owns a cleaning service business with their spouse. The company contracts with the team to perform janitorial services after hours for the office.
• A Sales Manager also performs graphic design work for several local businesses after hours. The company contracts with the individual to create a new logo for the company.
• A Maintenance Technician also owns a fabricating business of their own. The company contracts with the individual to fabricate equipment for the company.
An employee owning their own business is not a requirement, but rather one of the factors to consider when determining if someone may be properly classified as an independent contractor. If you feel confident in the IRS criteria, on the whole, you may classify their separate work as independent contractor work. But, be sure! It is widely believed among tax professionals that having a worker receive both a W-2 and 1099 increases the likelihood of an IRS audit.

If you’d like to learn more about the IRS test for independent contractor classification, sign up and check out our 2-Minute HR Training on the topic or check out the Independent Contractor Classification Guide on the HR Support Center.

Job descriptions are not required by law, but they’re certainly great to have and serve several purposes.

First, a job description, when accurately written, should reflect the actual work done. The applicant or employee can see what will be expected of them and to what they’ll be held accountable. The job description helps eliminate any confusion about what job duties are assigned to the employee. It will also prove useful when conducting performance evaluations and goal setting, as you will have a clear description of what the employee is expected to accomplish in their position.

Second, a well-written job description will list the essential functions of the job and the knowledge, skills, and abilities required to do it. This information will be useful as documentation in the event an employee misrepresented their qualifications for the position or is simply not performing to the expected standard. With a clear job description, you’d be able to terminate the employee with less risk of an unlawful termination claim.

Finally, a job description should indicate the basic expectations for the person in the position, including how many hours per week you expect from an employee, whom they report to, and whether the position is non-exempt or exempt. This allows an employee to be aware of the time commitment, whether to expect overtime pay and whom they should go to with questions.

You are correct to focus on skills and qualifications during the interview process. As you noted, employees are protected from discrimination based on having a disability. This also includes having a record of a disability or simply being perceived as disabled.

It’s important not to make assumptions about a candidate’s ability to perform their job based on their having disclosed that they have a disability or other health condition. An employer can ask all candidates if they are able to perform the job either with or without accommodation; as a best practice, however, we recommend asking this on the written application rather than during the interview. If a candidate at the post-offer stage requests an accommodation to perform the essential functions of their job, then you would engage them in the interactive process to determine whether you could provide accommodation.

In the future, you should counsel employees who conduct interviews not to solicit or document information that a candidate discloses regarding their inclusions in any protected class (e.g. disability, sexual orientation, national origin). This will help you avoid the appearance that such information was a factor in the employment decision.

For the current situation, I would recommend just continuing to focus on the skills and qualifications of the candidates that you have. If you do choose another candidate, you should be able to justify the decision based on those comparative skills and qualifications and be able to show that the chosen candidate was truly a better fit.

The short answer is no.

It’s highly unlikely that an administrative assistant would meet the criteria for classification as an independent contractor. The IRS and the U.S. Department of Labor, along with state agencies, have specific criteria for determining who is an employee and who is an independent contractor. These criteria focus on the overall relationship workers have with their employer, with particular attention to who controls when, where, and how the job gets done, as well as who has the opportunity for financial profit or loss. Administrative assistants typically do not have that level of control over their work, so they’ll almost always be classified as employees.

I understand that you’d like to hire the individual on a trial basis, with the possibility of continued employment. You can do this by offering them temporary employment. During the 90-day period, make sure that you provide the employee with clear expectations for the position and success in the role. If you elect to end their employment once the 90 days are up, you should document why they are not being considered for continued employment.

No. An employee can’t waive their right to overtime pay, even if they want to. The federal Fair Labor Standards Act (FLSA) prohibits the waiver of an employee’s rights to overtime pay (and minimum wage) in nearly all circumstances. The only time an employee can be exempt from overtime is when they perform work that qualifies for an exemption under federal (and state) law and meets any other applicable tests or criteria for the exemption.

This Q&A does not constitute legal advice and does not address state or local law.

No. An employee wanting to change their hours because they got a second job is not something you’re required to accommodate. Even so, we wouldn’t recommend immediately giving the employee an ultimatum to keep working their current schedule or resign. Instead, we’d suggest talking with your employee about different options to see what you can make work. They may have some scheduling flexibility with their new job. One of their coworkers at your organization may be willing to change or swap their shift. There may also be additional shifts with your organization they could work instead of seeking additional income elsewhere.If you exhaust these options and are still unable to accommodate the employee’s requested schedule change, you may just need to tell the employee no and let them decide what to do.

Don’t wait. If the employee was underpaid, it is in your best interest to pay the employee the difference immediately. Wages are due on the regular payday for the pay period covered, as required by the Fair Labor Standards Act. State law may apply as well. When an error occurs and results in an underpayment, the employer is technically in violation of the law, even if it was a system error or caused by an employee’s timekeeping mistake.

Yes, but you have to pay for it. As an employer, you have control over schedules and can modify them as needed. That may mean scheduling additional work time for employees. A few things to note:
• For nonexempt employees, any extra work time must be compensated at or above minimum wage, and any overtime worked must be paid at the required premium. Properly classified exempt employees don’t need to be paid extra for extra work.
• Employees who haven’t previously been scheduled outside their normal work hours may have conflicts. Giving them a heads up well in advance of a change to their schedule may increase the chance that they can take on the extra work.
• Some employees may have commitments they can’t change or may otherwise be unable to work the extra hours. If you plan to make the extra work a requirement for certain positions, you may experience unwelcome turnover.
• Over time, additional hours can lead to burnout. Make sure managers are regularly communicating with their team members about workloads and morale.

Yes. There are many reasons you might want or need to track exempt employee time. For example, you may opt to track an exempt employee’s hours for purposes of client billing, grant tracking, Family and Medical Leave Act (FMLA), retirement or pension plans, or hours-based benefits calculations such as vacation accrual. However, as a general rule, we recommend focusing on whether the job is getting done instead of worrying about the exact amount of time spent in the office. Tracking exempt employee hours adds likely unnecessary work to their plate and to yours.

While you may choose to track the hours of exempt employees, ensure the information is not used to take deductions from an employee’s regular salary, unless such deductions are allowable under both state and federal law. An exempt employee’s salary should not fluctuate based on the number of hours worked within the workweek. Prorating an exempt employee’s salary based on hours worked may result in the loss of the exemption.

A workweek is not the same thing as your hours of operation. Rather, it defines the 168-hour period (i.e., seven 24-hour days) in which you track your non-exempt employees’ time to determine whether they’re owed any overtime premium pay.

The workweek can start and end whenever you would like (e.g., Saturday at midnight or Tuesday at noon), but it should change rarely, if ever. Changing it to avoid paying overtime would violate the Fair Labor Standards Act and could lead to wage complaints.

Your employees should know what the workweek is. We recommend posting it in a place they’ll see, like a wall in the office kitchen or in the employee handbook.

Probably not. Many states have imposed significant limitations on what kinds of things employers can take a deduction for, and often the deduction also requires employee consent. In addition, most deductions that would take an employee below minimum wage would violate federal and state wage and hour laws. Further, deducting from an exempt employee’s salary in such an instance violates the salary basis requirement under the Fair Labor Standards Act (FLSA). Instead, we recommend addressing carelessness as a performance concern. Document the occurrence and, if warranted, pursue corrective action. Repeat offenses may result in termination of employment.

Going forward, make sure you address this issue in a consistent manner. Update your policies if they aren’t already clear about what happens when an employee damages company property (discipline eventually follow by termination, but not deductions). That way everyone knows what to expect, there are no surprises, and no one has grounds to say they’re being treated unfairly.

It depends. You are not required to pay non-exempt employees (those paid by the hour and entitled to overtime) for time spent at company functions when attendance is completely voluntary, no work is performed, the event occurs outside of regular working hours, and the event is not job-related. If your “welcome back” party meets these conditions, no payment is needed for non-exempt employees who attend.

Exempt employees (those not entitled to overtime) do not need to be paid extra for time spent attending a company function. They should be paid their usual salary whether or not they attend the party.

Yes, in this situation, we recommend paying this employee for travel time during her workday. Under the Fair Labor Standards Act (FLSA), tasks performed during the employee’s “continuous workday” are considered paid time (with a few notable exceptions, such as meal breaks). Because she’ll drop the files off at the office during her normally scheduled work hours, it’s most likely considered part of her continuous workday and needs to be paid accordingly. In addition, choosing not to pay her for this time would also mean asking her to do a task that results in her receiving less income than she normally would, which would likely prompt frustration and decrease employee morale. For these reasons, we recommend paying her for this travel time.

The answer depends on whether the employees are exempt or nonexempt under the Fair Labor Standards Act. Exempt employees must still be paid when you close due to inclement weather. Nonexempt employees, however, only need to be paid for actual hours worked, plus any reporting time pay that may be required by state law.

That said, you should also be consistent with your own policy and practice. If you have been paying all employees—regardless of their employment classification—for hours they would have worked had you not closed for bad weather, then you should continue to do so. If you would like to end that practice, we recommend creating a clear written policy and distributing it to all employees prior to implementation.

No. Withholding or delaying an employee’s paycheck would violate wage and hour laws. You could attempt to retrieve the items yourself by going to the employee’s home and asking for them in person. If that fails, you might consider asking your attorney to write a demand letter or taking the employee to small claims court. In any case, I recommend documenting the situation, all attempts you made to contact the employee, and the end result.

There are two federal laws to consider when managing pay for employees on military leave: the Fair Labor Standards Act (FLSA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA).

According to the FLSA, non-exempt employees only need to be paid for hours actually worked. Exempt employees, however, must receive their full weekly salary if any work is performed during a workweek when they were taking military leave. If an exempt employee doesn’t work at all during a given week, then they do not need to be paid for that week. Employers are allowed to offset an exempt employee’s salary by the amount they receive for military service while on leave.

Under USERRA, employers cannot require employees on military leave to use their paid time off benefits during absences. However, employees can voluntarily elect to use paid time off to cover absences.

Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), the employee has leave and job reinstatement rights, meaning you’ll need to rehire them following their service. The employee will also be entitled to both seniority-based benefits (as if they had not been on leave) and to non-seniority benefits (e.g., continuation of life insurance) that employees receive when on non-military leaves of absence.

USERRA also grants returning service members some protection from termination without cause and prohibits employers from retaliating against anyone who exercises their USERRA rights.

The Department of Justice has created an extensive guide on this topic, which you may find useful, here.

No. Employers who are closed — either due to lack of business or a state or local order — do not have to provide these leaves. Employees who are furloughed (temporarily not working but still on the payroll) are also not entitled to these benefits. In either of these cases, employees would be eligible for unemployment insurance instead. However, employers should ensure that they are not making furlough or layoff decisions based on an employee’s request or potential need for leave, as this would likely be considered interference or retaliation (and grounds for a lawsuit).

Valid wage garnishments need to be followed regardless of the affected employee’s feelings on the matter. In this case, you should go ahead and follow the instructions from the garnishing agency, withholding and sending them the specified amounts. The instructions should tell you what kind of notice you need to provide to the employee and provide a contact number if you have questions about remitting the payments. You may want to have a separate conversation with the employee so you can explain your legal obligations and why you cannot refuse to withhold the required amounts. If the employee wishes to get the garnishment discontinued or altered, you can refer the employee to the garnishing agency for further conversation; the employer’s obligations will remain in effect until new instructions are received from the agency.

Yes, you can send employees home early due to a lack of work. Just keep in mind that exempt employees would need to be paid their entire salary for the day. Non-exempt employees would only need to be paid for actual hours worked unless you operate in a state with reporting time pay requirements.

If you do operate in a state with reporting time pay requirements, employees may be entitled to reporting time pay for a certain number of hours even if they just show up and do no (or very little) actual work. This pay requirement is intended to lessen wage loss that is not the fault of the employee, as well as encourage employers to not over-schedule, since overscheduling and then canceling shifts causes employees to waste time and resources getting to work. Given this, some employers decide to keep employees on the clock for more or all of their shifts even though business is slow.

States with reporting time pay include California, Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Oregon (for minors), and Rhode Island; the District of Columbia also has reporting time pay. The requirements for each of these states can be found in the Laws section of the HR Support Center.

If an employer requires attendance at training, then it generally must be paid. While this training may often be directed because of state law, it is ultimately an employer-directed activity.

Department of Labor guidance is that training and work events can only be non-work time (unpaid under the Fair Labor Standards Act) if all four of the following criteria are met:
• The training occurs outside of the employee’s normal work hours;
• The training is completely voluntary (there will be no company-initiated consequences if the employee does not attend);
• The training is not specifically job-related (it may be tangentially related to their job, such as most continuing education, but cannot be specific to how they do their job on a day-to-day basis); and
• No work for the employer is performed during the training (e.g., reading or replying to email or requests).
Given these criteria, nearly all harassment prevention training will be paid time.

If possible, we recommend that you offer sexual harassment prevention training during regular working hours so that you can easily track and pay for the time. Providing the training during the workday also sends the message that you value the training and are serious about preventing harassment in the workplace.

The answer depends on whether the employees are exempt or non-exempt under the Fair Labor Standards Act. Exempt employees must still be paid when you close due to inclement weather. Non-exempt employees, however, only need to be paid for actual hours worked, plus any reporting time pay that may be required by state law. If nonexempt employees are contacted by the employer prior to reporting to work, no payment is due for the day.

That said, you should also be consistent with your own policy and practice. If you have been paying all employees—regardless of their employment classification—for hours they would have worked had you not closed for bad weather, then you should continue to do so. If you would like to end that practice, we recommend creating a clear written policy and distributing it to all employees prior to implementation.

Many employees like the option of using accrued paid time off or vacation when there is an unexpected closure. This is something you can allow, but if your office has closed for weather in the past and you have not required employees to use paid time off or vacation, it would be risky to take up that practice now without giving them a heads up. When it comes to accrued paid time off or vacation, it is safest to give employees advance notice if there are situations where you will use their accrued hours whether they like it or not. Whether you allow or require the use of accrued hours in these circumstances, it’s best to describe your practice in a written policy and ensure employees have a clear understanding of what to expect.

Not exactly. An employee’s “regular rate of pay” is the amount used to calculate their overtime rate for a given time period. You might think of it as an average, of sorts.

An employee’s regular rate is determined by adding up the amount paid for their work, as well as earnings from non-discretionary bonuses (such as those tied to performance or retention), then dividing that amount by the total hours worked.

For example, let’s say Anna earns $10/hour for inside sales work and $15/hour for bookkeeping work. This week, she worked 24 hours in inside sales and 20 hours as a bookkeeper. She also received $50 in commissions that are attributable to this workweek. Her regular rate of pay for this workweek would be calculated as follows:

($10 x 24) + ($15 x 20) + $50 / 44 hours = $13.41/hour (her “regular rate” for the workweek)

Under federal law, non-exempt employees should be paid 1.5 times their regular rate of pay for any hours worked over 40 in a workweek. This means that Anna’s overtime rate would be $20.11 per hour, based on her mix of hourly rates and commission.

There’s no specific limit to the number of hours you can assign to a part-time employee, as it’s up to you to decide how many hours employees need to work in a week to be considered full-time. I recommend abiding by the standards you’ve set. So, for example, if you define full-time as working 35 or more hours per week, then you’d want to make sure you were assigning part-time employees fewer than 35 hours in a week.

If you are regularly assigning a part-time employee a full-time schedule—and full-time employees receive additional benefits, such as paid time off—you should consider reclassifying the employee to avoid claims of unfair treatment or discrimination. Also note that for certain laws (including the ACA) and for purposes of insurance or retirement plans, benefits will kick in when an employee hits a certain number of hours per week, regardless of whether you internally call them part-time or full-time.

A discretionary bonus, as its name implies, is a bonus in which the employer has discretion as to whether to pay it and what amount it will be. In other words, there’s no promise or agreement that a discretionary bonus will be paid. A surprise holiday bonus is one example.

A non-discretionary bonus, on the other hand, is a promised bonus that the employee expects to receive if certain conditions are met. Non-discretionary bonuses include individual or group production bonuses, bonuses for quality and accuracy of work, retention bonuses, and attendance bonuses. These bonuses are typically used to motivate employees.

The most important thing to remember about non-discretionary bonuses is that when issued to a non-exempt employee, they must be included in the employee’s regular rate of pay when calculating overtime.

In most cases, yes. As long as you don’t have a contract with the employee guaranteeing them a certain position or rate of pay, you can transfer them to a different position and pay rate for which they’re better qualified. Such employment decisions are up to your discretion.

That said, demotions aren’t always the best course of action. You’re out the money you invested in hiring this individual and preparing them for the management role, and they’re likely to feel embarrassed and possibly resentful. If the employee could perform better with training or coaching, a little additional investment here might save you money in the long run and earn you goodwill from employees.

If a job transfer is the right move, however, it’s a good idea to document the performance issues, skills gaps, and knowledge deficiencies ahead of time—plus any measures you took to help the employee improve. That way you can show the legitimate basis for the employment decision if you were ever challenged on it.

You are not required to pay non-exempt employees (those paid by the hour and entitled to overtime) for time spent at company functions when attendance is completely voluntary, no work is performed, the event occurs outside of regular working hours, and the event is not job-related. If these conditions are met, no payment is needed for non-exempt employees.

Exempt employees (those not entitled to overtime) do not need to be paid extra for time spent attending a company function. They should be paid their usual salary whether or not they attend the voluntary function.

Yes. You can absolutely send a sick employee home, but you’ll want to make sure you’re doing so consistently for visibly-ill employees. In fact, I would recommend having a policy to that effect and clearly communicating that policy to your employees. That way sick employees know what is expected of them and can save themselves the trip to work.

Be aware, however, that some states require reporting time pay, so if you send a non-exempt employee home before their shift starts, or before it’s over, you may still owe them a few hours of pay. And exempt employees in all states must be paid for a full day of work, even if sent home early due to illness, if any work at all was performed that day, including work from home.

Many employers find it advantageous to offer paid sick leave so that employees who are under the weather don’t have to worry about receiving a smaller paycheck and are less likely to come in and spread their germs. They can focus on getting rest and feeling better so they can return to work healthy and productive.

Yes, provided that the discipline doesn’t involve withholding, reducing, or delaying payment, as employers are required to pay for actual hours worked regardless of whether employees have fulfilled their timekeeping duties. In fact, we recommend using a progressive disciplinary process when an employee fails to complete their paperwork on time, as this is considered a failure to perform an important job duty. It’s really the only legal and effective method we have found to address a lack of timekeeping paperwork once timesheet procedures have been thoroughly explained and where the problem persists.

Disciplinary measures may include a verbal warning, written warning, disciplinary suspension, or termination of employment. Oftentimes, however, employees only need a gentle reminder to get back in the habit of turning in their timesheets.

Non-exempt employees need to be paid only for actual hours worked plus any reporting time pay that may be required by the state (this sometimes applies when employees show up for work but are sent home early).

Exempt employees, on the other hand, must be paid when the employer closes due to inclement weather, whether they do any work or not. You may require exempt employees to use accrued vacation or paid time off for the day if that is your regular practice when the workspace closes. However, exempt employees without enough paid time off to cover the absence must still be provided with their regular salary during the closure.

Many companies have inclement weather or emergency closure policy for these sorts of situations. These policies typically address communication in the event of worksite closures and options for employees. You might, for example, allow employees to work from home. If you don’t have a policy like this in place, now might be the time to implement one. You can find an inclement weather policy in the HR Support Center Policy Library.

Yes, you can send employees home early due to a lack of work. Exempt employees under the Fair Labor Standards Act (not entitled to overtime) would need to be paid their entire salary for the day. Non-exempt employees (those eligible for overtime) would generally only need to be paid for actual hours worked.

However, if you operate in California, Connecticut, D.C., New Hampshire, New Jersey, New York, Massachusetts, Oregon (minors only), or Rhode Island, you should check your state’s reporting time pay requirements. Employees may be entitled to reporting time pay for a certain number of hours even if they just showed up and did no actual work. This is intended to lessen wage loss that is not the fault of the employee, as well as encourage employers to not over-schedule since it causes employees to waste time and resources getting to work

If an exempt employee does any work, they must be paid for the full day—there is no minimum. For instance, if the employee came to the office for the first 15 minutes of their usual 8-hour day, then went homesick, they would be entitled to their full pay for that day.

The only exceptions to the Full-Pay-for-Partial-Day rule are during the employee’s first or last week of employment, when the employer is offsetting amounts received for civil services like jury duty or military leave, or when the employee is taking unpaid leave under FMLA.

Employers can, however, use an employee’s paid time off to fill in the gaps. So, if that employee had paid time off available in their PTO bank, the employer could use a partial day of that time to cover their absence. But if the employee was out of paid time off (or was never offered any), the employer would still owe them for the full day.

In general, time spent in job-related training is counted as time worked and must be paid. However, not every lecture, meeting, training program, or similar activity would qualify. If all four of the following criteria are met, you do not need to pay the employee for the training:
1. The training occurs outside of the employee’s normal work hours;
2. The training is completely voluntary (there will be no company-initiated consequences if the employee does not attend);
3. The training is not specifically job-related (it may be tangentially related to their job, such as most continuing education, without being specific to how they do their job on a day-to-day basis); and
4. No work for the employer is performed during the training (e.g. reading or replying to email).

Under the Fair Labor Standards Act, you are required to keep such records for at least three years from the time of creation. However, we recommend that personnel records, including payroll records and timecards, be kept for seven years from the date the record is made or the date of termination, whichever is longer. That way, if you are subject to an IRS audit (which could go back seven years), you have this supporting documentation available upon request.

If you’re currently using a paper timekeeping system and you don’t want to store that much paper around the office for seven years, you can scan paper documents for electronic storage. Just make sure you have a reliable and secure method for storing this sensitive information and are able to access it as needed.

Yes, the employee is still eligible for the overtime she worked prior to when the exemption from overtime went into effect and should be paid for any overtime hours worked during that period. You do not need to pay her for overtime worked after the exemption went into effect. If the exemption took effect mid-workweek, we’d recommend paying her overtime for hours over 40 during that week, even though some of them may have been worked while she was an exempt employee.

Yes. Under the Fair Labor Standards Act (and likely state law as well), you must pay employees for all hours worked. This includes the time they are required to be on your premises, even if they haven’t begun their “regular” duties. Preparing for work—if it must be done at work—will be considered part of the employee’s continuous workday.

You are certainly welcome to have an attendance and tardiness policy that requires employees to be at their desk or assigned location and ready to work exactly when their shift begins, and to discipline them if they are not ready. But if you require employees to arrive earlier to ensure this happens, you’ve effectively extended their shift by that amount of time and will need to compensate them for it.

Yes. Titles, job duties, and locations are irrelevant—focus only on the total number of hours worked by the individual for your organization.

Under the Fair Labor Standards Act, non-exempt employees must be paid overtime for all hours worked over 40 in a workweek for a single employer. In some cases, an employee working a schedule like this for two separate companies may even be entitled to overtime, assuming the organizations have the same owners and management or otherwise qualify as joint employers.

Failure to pay overtime may result in significant penalties, as employees who bring a successful claim are often entitled to double what they should have earned in overtime under federal law and frequently have similar remedies under state law.

Yes, you will most likely be required to pay for the hours an employee spends at a training course and those hours must count toward any overtime calculation.

The time that employees spend in training courses is considered hours worked unless all four of the following criteria are met:
• Attendance at the course is outside regular working hours;
• Attendance is completely voluntary;
• The course is not directly job-related; and
• The employee does not perform any productive work during the course.
To determine whether the training is “directly job-related,” you must ascertain whether the purpose of the course is to make the employee more efficient and effective in their current position. If the training is intended to develop the employee for an advancement opportunity or is for college credit, it most likely can be excluded from the “directly job-related” category.

As a side note, it is permissible to pay employees at a lower rate for training time (as long as that training rate meets or exceeds minimum wage). However, to do so, you must notify the employee in writing of the pay rate the company will use for training hours. The required notice period varies from state to state.

In the event you’re made aware that an employee needs medical leave, but the employee is not available for direct contact due to inpatient care in a facility or incapacitation, send the applicable leave paperwork to the employee’s address on file. The employee may have someone who can get the paperwork from their home address to them or their health care provider—this is one of the most reliable methods of delivery to prove that you’ve met your compliance obligations.

It’s possible you’ll hear from a case manager, family member, or emergency contact who reaches out to you on the employee’s behalf. In such a situation, you could also send the paperwork to the employee at the facility they’re in.

Whatever the case, address the paperwork and any other correspondence to the employee directly, and don’t release the employee’s confidential information unless you have direct authorization from them.

In general, yes. But you should have—and document—a legitimate business reason for doing so. Denying vacation requests will undoubtedly hurt morale, especially if it happens frequently, and low morale leads to higher rates of turnover.

Discrimination claims are also a risk. Although denying vacation requests for legitimate business reasons will reduce the chance of a discrimination claim, you’ll also want to make sure you’re not denying vacation in a way—even unintentionally—that disproportionately affects employees with the same protected characteristic. For example, if you deny vacation requests from employees in the customer service department—which happens to be mostly women—more than other requests, they might have a gender discrimination claim. We also hear from employers who want to deny vacation requests when the employee is asking for time off for medical procedures or recovery—this clearly raises disability discrimination issues.

The best approach to avoid these types of discrimination claims is to periodically crunch the numbers to see if employees who share a protected characteristic are significantly more likely to have their request denied than others and, if so, adjust your practices accordingly.

When you really must deny a request, do so carefully. It’s important to show empathy in these situations. You never know what someone has going on in their life. Stay focused on the fact that rejecting their request isn’t something you want to do—it’s something you must do. State the business reason you couldn’t approve the request and work with them to find an alternative time they can take off.

If you find you are regularly denying requests when employees have a vacation planned, we recommend reaching out to an employment law attorney for additional guidance.

Federal law requires that you keep the medical information you obtain confidentially, so you should tell your staff only that the employee is out on leave. The employee’s direct manager or whoever does scheduling may need to know the expected duration of the leave, but very few, if any, managers or staff will need to know why the employee is on leave. Rehab, like other reasons for extended absences, may become fodder for gossip, so minimizing who knows the reason for the leave lowers the risk of those details becoming public.

If anyone comes to you with questions, you can remind them that, for the sake of everyone’s privacy, you don’t discuss any employee’s personal matters.

The term leave can refer to just about any type of time away from work, but it’s often used to describe the time an employee is entitled to take by law or company policy. Common leave entitlements include vacation, personal days, and sick days. Other forms include time off taken for bereavement, military service, jury duty, and the birth or adoption of a child.

Whether a leave is paid or unpaid depends on what the law or your policy requires for that type of leave. Leave under the Family and Medical Leave Act, for example, is unpaid, though employers may choose to layer paid leaves on top of it (like paid parental leave that the company offers by choice). Most state sick leave laws, however, require the time off to be paid.

If an employee of yours works in a state with a voting leave law, you will need to comply with that law. Most states require that employers provide at least a few hours to vote, and many of those states require some or all of that time to be paid. In New York, for example, all registered voters are allowed to take off as much time as is necessary to enable them to vote and are entitled to be paid for up to three of those hours. You’ll also want to check any applicable voting leave laws for notice requirements and for specifications on when during an employee’s shift the time off should be given. You can find all this information on the HR Support Center by entering “voting leave” in the search bar.

To keep things simple and fair, you might consider implementing a single company policy that meets or exceeds all applicable state requirements. That way there’s no confusion about what your policy is, employees in states without leave requirements won’t feel like they’re being excluded, and everyone in your company will have the opportunity to vote. Some employers even go the extra mile by canceling all meetings on election day or making that day a paid holiday.

You can generally ask employees to provide more information when they indicate that their vacation or PTO request is for personal reasons, but we don’t recommend it. The specific reasons for the day off shouldn’t affect whether you grant the request, and you don’t want to give the impression that you’re accepting or denying requests based on the reasons that are given. It may also be information an employee doesn’t want to share.

If the time off requested is problematic for scheduling and you’re trying to assess whether the employee could take off a different day or time (or if the company should grant the request despite the inconvenience), we recommend having a conversation with the employee rather than digging for details without telling them why you’re asking.

This advice applies only to time off that you offer as a company benefit; time off that is required by federal, state, or local law will have its own requirements about what you can or cannot ask.

Yes, the decision to approve or deny the use of accrued vacation time is up to you, assuming you do so in a consistent and non-discriminatory manner. It would be acceptable, for example, to deny a vacation request because approving it would leave you without adequate coverage, or because the employee asked with less notice than is required by your time off policy.

You should, however, ensure that certain employees are not denied vacation disproportionately. For instance, if an employer’s admin staff (who are all women), or their software engineers (who are all men), are consistently denied vacation because arranging coverage is difficult and deadlines are abundant, this could lead to claims of discrimination.

If the differing amounts of vacation or PTO are based on clearly-defined employee groupings, such as seniority, department, or exempt versus non-exempt status, then yes. It’s a common practice, for example, for employers to offer more vacation time to employees who have been with the organization for longer.

Where you can run into trouble is offering different amounts of vacation on an individual basis or without clearly-defined criteria, either of which can lead to discrimination claims. For instance, if Rafik and Anita are hired at the same time for similar jobs in the accounting department at the same rate of pay, but the organization offers Rafik more vacation, Anita could potentially bring a claim under federal or state discrimination or pay equity laws.

I understand not wanting to allow the employee to use unaccrued vacation time. We usually don’t recommend the practice because of the issues involved. Recovering a negative vacation balance upon separation of employment can be difficult and is limited in many states. In addition, making special exceptions to your policies can also open you up to discrimination or equal pay claims.

In this case, since you want her to be able to attend the event, an alternative might be to allow her to take the time off as unpaid. That way, she has the option of attending the event, and you don’t have to worry about the problems that can arise from making exceptions to your policies.

Yes, you may need to allow employees time off to vote, and you may even need to pay them for it.

The specifics will depend on state law. Most states do require some kind of time off. Two hours is the most common allowance, and generally, the employer can require that the employee take it at the beginning or end of their workday. The amount of time employees must be allowed often depends on how much time they have before or after their shift while the polls are open.

To learn about the law in the state or states where you operate, check out the Jury, Witness, and Voting Leave pages in the State Laws section of the HR Support Center.

Yes, it’s possible to make this change. Any employee can be classified as a nonexempt employee, although we generally recommend that all employees in the same role have the same classification.

That being said, exempt employees sometimes feel there is a certain “status” involved in being salaried and exempt. If you decide to reclassify an employee, aim to do so in a manner that does not denigrate them or cause them to become disengaged.

When reclassifying employees from exempt to nonexempt, it’s important to clearly communicate the change in writing, make the change effective in payroll and job descriptions, and communicate your policies and expectations that will be affected. You’ll also want to ensure that managers understand all applicable wage and hour laws impacting nonexempt employees and how they may affect their day-to-day work. These may include:
• Taking meal and rest breaks
• Properly tracking their time
• Reporting any overtime worked
We also highly recommend that you implement this change with advance notice to the affected employees and with an effective date that falls on the start of a workweek and your payroll cycle. This gives you time to communicate your expectations and train your employees on the policies they’ll need to follow now. We recommend obtaining a written acknowledgment from the affected employees showing their understanding of these changes.

If you are reclassifying the employee because you realized they have been misclassified as exempt, you may want to speak with an employment attorney first since the change may tip the employee off that they were previously missing out on overtime or other benefits.

This Q&A does not constitute legal advice and does not address state or local law.

Yes, a part-time employee may be classified as exempt. The minimum salary and duties requirements must still be met, of course. And the minimum salary cannot be prorated when an exempt employee works part-time. In other words, the federal requirement to pay $684 per week (or the higher state minimum salary) will apply even if the person is working less than full time.

That said, “part-time” and “exempt” usually don’t go well together. The point of classifying an employee as exempt—from the employer’s perspective—is that the employee can be paid a set salary and asked to work extra hours without being entitled to overtime pay. But employees who are hired into part-time roles often seek them because they have other obligations (or even other jobs). They generally expect to work an exact number of hours each week or at least keep to part-time hours.

While the nature of exempt status is that employees can be expected to work the number of hours necessary to get the job done, if the job is actually a full-time job, it should be classified as such. If you start to lean heavily on your ability to require an exempt part-time employee to work extra hours without extra pay, potentially upending other plans, morale is likely to suffer. However, you can mitigate this by being clear upfront about what kind of commitment may be required and by advertising and describing the job accurately. Additionally, referring to a part-time exempt employee as 50% FTE (rather than telling them they’ll be working 20 hours weekly) can help establish an expectation that salary isn’t linked to an exact number of hours.

If a part-time employee’s hours will fluctuate dramatically, you should carefully consider whether “exempt” is the right classification. If you reclassify an employee as nonexempt, they must be paid overtime where applicable.

Yes. There are many reasons you might want or need to track exempt employee time. For example, you may opt to track an exempt employee’s hours for purposes of client billing, grant tracking, Family and Medical Leave Act (FMLA), retirement or pension plans, or hours-based benefits calculations such as vacation accrual. However, as a general rule, we recommend focusing on whether the job is getting done instead of worrying about the exact amount of time spent in the office. Tracking exempt employee hours adds likely unnecessary work to their plate and to yours.

While you may choose to track the hours of exempt employees, ensure the information is not used to take deductions from an employee’s regular salary, unless such deductions are allowable under both state and federal law. An exempt employee’s salary should not fluctuate based on the number of hours worked within the workweek. Prorating an exempt employee’s salary based on hours worked may result in the loss of the exemption.

No, it’s fine to classify managers as nonexempt. You are under no obligation to classify any employees as exempt, even if they meet the criteria under the Fair Labor Standards Act. You could have an entire workforce of nonexempt employees, right up to the CEO. The important thing is to follow all wage and hour laws applicable to nonexempt employees, including paying them for overtime.

Having said that, there are advantages to classifying employees as exempt if they meet all the criteria. It’s administratively easier for you as the employer—no need to track hours for calculating overtime—and many employees prefer to be paid a salary that doesn’t change from week to week.

You can learn more about the criteria for classifying employees as exempt, such as the duties tests and salary thresholds, on the platform.

In general, if an exempt employee performs any work during the workweek, you must pay them their full salary amount. Deductions are allowed, however, for legally required withholding 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 absolutely no work
• In the initial or final week of employment based on the number of hours actually 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 found that a plan that offered at least 5 paid days off for sickness qualified 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
If none of these situations apply, an exempt employee must receive the full salary for any week in which they perform any work, regardless of the number of days or hours worked. In addition, some states do not allow all of these deductions.

Not for half-day, no. As a general rule, if an exempt employee performs any work during the workweek, they must be paid their full salary. If the employee were taking off one or more full days for this social event, then a deduction from their salary would be permissible. A half-day, however, does not qualify for a deduction. That said, if the employee has paid time off (PTO) available, you could deduct from that bank of hours for a partial or full-day absence—this is not considered a salary deduction since they will still get their regular pay as a result of using PTO.

Yes, it is completely permissible for non-exempt employees to manage other non-exempt employees. In fact, employers are under no obligation to classify employees as exempt, even if they meet the criteria under the Fair Labor Standards Act. Employers may have an entire workforce of non-exempt employees if they wish. It is just very important to make sure that they are paid for any overtime and follow other wage and hour laws applicable to non-exempt employees.

Good questions. The Fair Labor Standards Act (FLSA) is a federal law requiring that most employees receive at least minimum wage for each hour worked and overtime pay for hours worked over 40 in a workweek. Some employees, however, are not entitled to overtime, while others are not entitled to overtime or minimum wage. Employees who are entitled to both minimum wage and overtime are called non-exempt, while those who are not entitled to both are called exempt.

The FLSA lists quite a few exemptions. The most commonly used (particularly in office settings) are the executive, administrative, and professional exemptions. These are known as white-collar exemptions, and employees who are properly classified this way are not entitled to minimum wage or overtime. But, to qualify, each position must pass a three-part test:

1. Duties: The employee must perform specific tasks (such as managing at least two people) and regularly use their independent judgment and discretion. Each exemption has its own duties test.
2. Salary level: The employee must make at least $455 per week (equal to $23,600 per year).
3. Salary basis: The employee must be paid the same each week regardless of hours worked or the quantity or quality of their work. Reducing an exempt employee’s pay is only allowed in very narrow circumstances.

If an employee meets all the criteria under one of the white-collar exemptions, the employee may be properly classified as exempt and will not be entitled to minimum wage or overtime pay. If the employee does not meet all the criteria under a specific exemption, they must be classified as non-exempt and paid at least minimum wage and overtime when applicable.

There are many more exemptions available than those discussed above. If you use the search bar in the HR Support Center and type in exemptions, you’ll find dozens of resources to help you learn more.

Yes, you can require an exempt employee to work weekends and not pay them extra, assuming they are properly classified this way. It’s pretty standard for exempt employees to be asked to work late or put in additional time on occasion, and in most cases, there is no expectation of extra pay. Although there are some exceptions, exempt employees are generally entitled to their full salary regardless of how many hours they work during the week—in other words, taking a long lunch, leaving early, or working extra hours in the evening or on a weekend doesn’t change their pay.

Exempt and non-exempt are classifications under the Fair Labor Standards Act (FLSA), a federal law requiring that most employees receive at least minimum wage for each hour worked and overtime pay for hours worked over 40 in a workweek. Employees who are entitled to both minimum wage and overtime are called non-exempt, while those who are not entitled to both are called exempt.

Any position can be non-exempt, meaning that employees in that position are entitled to both minimum wage and overtime pay. If you would like to classify a position as exempt, it would need to qualify for one of the exemptions listed in the FLSA.

The most commonly used (particularly in office settings) are the executive, administrative, and professional exemptions. These are known as white-collar exemptions, and employees who are properly classified this way are not entitled to minimum wage or overtime. But, to qualify, each position must pass a three-part test:
1. Duties: The employee must perform specific tasks (such as managing at least two people) and regularly use their independent judgment and discretion. Each exemption has its own duties test.
2. Salary level: The employee must make at least $455 per week (expected to be ~$679 per week starting around January 2020).
3. Salary basis: The employee must be paid the same each week regardless of hours worked or the quantity or quality of their work. Reducing an exempt employee’s pay is only allowed in very narrow circumstances.
If a position meets all the criteria under one of the white-collar exemptions, the employee may be properly classified as exempt and will not be entitled to minimum wage or overtime pay. If the position does not meet all the criteria under a specific exemption, the employee must be classified as non-exempt and paid at least minimum wage and overtime when applicable.

The Affordable Care Act (ACA) created the Patient-Centered Outcomes Research Institute (PCORI) to study clinical effectiveness and health outcomes. To finance the institute’s work, a small annual fee—commonly called the PCORI fee—is charged on group health plans.

PCORI filing is generally not required for standalone, self-funded dental or vision plans if they are considered “excepted benefits.” A plan qualifies as excepted benefits if it is not an integral part of the group health plan, meaning participants are able to decline or opt out of the coverage, and claims and benefits are administered under a separate contract from the group health plan.

Employers sponsoring self-funded and level-funded plans—such as group medical coverage, COBRA continuation, and most health reimbursement arrangements—must calculate their PCORI fee using one of the three allowable methods and file by July 31.

COBRA is short for the Consolidated Omnibus Budget Reconciliation Act of 1985. It’s a federal law that allows certain employees and covered dependents to elect to continue their same group health coverage, at their own cost, when it would otherwise be discontinued because of a qualifying event. These qualifying events include termination or reduction in hours, death of a covered employee, divorce or legal separation, Medicare entitlement, and loss of dependent status. Generally, COBRA can be used for up to 18 months, and in some circumstances, up to 36 months.

COBRA applies to most group health plans that are sponsored by employers with 20 or more employees on more than 50% of their typical business days in the previous calendar year. COBRA doesn’t apply to plans sponsored by the federal government, churches, or church-related organizations.

For COBRA purposes, group health plans include things like medical coverage, dental and vision plans, health flexible spending arrangements, health reimbursement arrangements, and other programs related to health benefits. COBRA does not cover plans that provide only life insurance or disability benefits because these are not considered medical care. Additionally, certain voluntary benefit plans may be exempt from COBRA.

Any qualified beneficiary who experiences a qualifying event must be offered the opportunity to elect COBRA. A qualified beneficiary is an individual covered by a group health plan on the day before a qualifying event occurs and who is an employee, the employee’s spouse or former spouse, or the employee’s dependent child. A child who is born to or placed for adoption with a COBRA participant is also automatically considered a qualified beneficiary.

You can find more information about COBRA, including notice requirements, on the platform.

No, enrolling in Medicare does not cause COBRA to start. Under the federal rules, COBRA must be offered to persons enrolled in the employer’s health plan only if they lose coverage because of certain specific events. Termination of employment is an example of a COBRA qualifying event. Becoming eligible for Medicare, or enrolling in Medicare, is not a COBRA qualifying event.

On the other hand, if someone is already on COBRA due to a prior event, and then they enroll in Medicare, COBRA will end. Early termination of COBRA due to Medicare enrollment only affects that person. If other family members also are on COBRA, they may continue for the remainder of the COBRA period assuming their premiums are paid when due and they do not enroll in Medicare or another group health plan.

Let’s look at another scenario: An employee enrolls in Medicare while continuing as an active employee covered under the employer’s health plan. Then the employee leaves the company. This will trigger a COBRA offer since the loss of coverage due to termination of employment is a COBRA qualifying event. Can the former employee elect COBRA despite being enrolled in Medicare? Yes, because they were already enrolled in Medicare before they elected COBRA. They probably will choose not to elect COBRA due to the cost, and since Medicare will be the primary claims payer, they have the choice.

There is one other rule about COBRA and Medicare that can be confusing. As we said, the employee who enrolled in Medicare while still working and covered under the employer’s plan later had a COBRA event. When loss of coverage is due to termination of employment, the COBRA continuation period is 18 months. Due to a special provision in the COBRA rules, the maximum COBRA period for the spouse or child (if also enrolled in the employer’s health plan when the COBRA event occurred) might be longer than 18 months. If the employee had first enrolled in Medicare no more than 18 months before the COBRA event, the maximum period for the spouse and children is 36 months counting from the employee’s Medicare enrollment.

For instance, let’s call the active employee Mary and say she enrolled in Medicare in January 2021 and then lost her group coverage when she terminated employment in May 2021. So, she enrolled in Medicare fewer than 18 months before her COBRA event. Her maximum COBRA period will be 18 months counting from May 2021, but COBRA for her spouse and children (if enrolled) could run for up to 36 months counting from January 2021.

Lastly, employers sometimes ask whether they can automatically terminate an employee’s (or spouse’s) group health coverage at age 65. Due to the federal Medicare as Secondary Payer (MSP) rules, employers with 20 or more workers cannot take into account anyone’s potential Medicare status in administering the group health plan. An employer with fewer than 20 workers also may be prohibited from basing health plan eligibility on the employee’s age due to the federal Age Discrimination in Employment Act (ADEA). We recommend employers review these matters with legal counsel.

This is likely a phishing scam—a type of con in which scammers use emails, texts, or phone calls to trick someone into providing company or personal information that then allows the scammer to steal from them. These messages often appear to come from someone the recipient knows—in this instance, your employees.
A successful scam can be a costly data breach with legal consequences for employers. In this case, had you fallen for the direct deposit scam, your employees would not have been paid on time, and you’d be out the money you owed them.
To protect your organization from this and other phishing attempts, we recommend taking the following steps:
• Verify that the message is not legitimate. In this case, inspect the email addresses for validity and reach out to the employees to confirm they didn’t request to have their bank information changed.
• Notify your IT department of the potential phishing attempt.
• Inform your workforce that scammers are afoot and remind them not to respond to emails that are suspicious or to email sensitive information. Email is like a postcard, potentially visible to anyone, so employees shouldn’t email their banking or other sensitive information.
• Work with your IT department to train employees how to recognize phishing attempts and what to do if they notice or fall prey to one.
• Ensure employees update their security software, internet browser, and operating system regularly.
• Create processes and policies that staff should follow in case of a breach, including what notices need to be given.

This Q&A does not constitute legal advice and does not address state or local law.