Walt Disney had himself cryogenically frozen. Alligators are alive and well in the NYC sewer system. You’ll die if you eat a whole bag of Pop Rocks and polish it off with a can of Coke. 2016 was the weirdest primary election season ever . . . oh, wait. That one’s true.
Human resources has its share of myths. Here we try to debunk some of the more common ones.
- As long as I pay my employee a salary, I don’t have to pay her overtime.
Wrong. Federal law requires application of both a salary test and a duties test to determine whether an employee is exempt from overtime requirements. In other words, to be exempt, an employee must be paid a minimum salary and have a certain type of job. Typically, these are known as the “white collar” exemptions. Most states have similar requirements. Employers who misclassify employees are sitting ducks for a class action suit over overtime wages and break and meal periods.
You should also be aware that before President Obama leaves office, the Department of Labor is likely to issue new rules raising the salary requirement for exempt status to over $50,000 per year. The new rules may also make some changes to the definitions of white collar workers. Employers should keep an eye out for these new rules because they will present an opportunity to review whether employees are properly classified.
- I can give an employee “comp time,” instead of paying him overtime.
Nope. Federal law prohibits this practice in the private sector. And, if you are one of those rare employers to which the FLSA does not apply, you still better double-check your state’s law. For example, Oregon prohibits the use of “comp time” in the private sector. It is allowed for public sector employees, but only if the comp time is worked in the same pay period.
- If my employee hasn’t told me she has a disability, I don’t have to ask if she needs an accommodation.
Wrong again. Although typically a disabled employee will request an accommodation, in some circumstances, she doesn’t have to. Under the ADAAA, an employer may be put on notice of the need for an accommodation by observing an employee, or by receiving information from co-workers or a representative of an employee. If you think an employee might need an accommodation, don’t ask if he or she is “disabled”; simply ask whether there is something you can provide that might enable her to perform the essential functions of her job. That initiates the interactive dialogue. You don’t have to give the employee the accommodation she wants, but you at least need to understand and evaluate what she thinks she needs and whether some accommodation is necessary. Of course, don’t forget to document that conversation!
- If my employee’s need for random, unscheduled, unpredictable intermittent medical leave interferes with our operations, I can deny it.
You cannot deny this kind of leave, even if it causes the employer serious problems (and it often does), because there is no “undue hardship” exception under the FMLA. If the employee is eligible for leave under FMLA or a comparable state law and the employee’s medical certification establishes the need for intermittent leave, the employer has to provide it. What can the employer do? Subject to the availability of the employee’s health care provider, you can require the employee to schedule appointments to minimize disruption to his work. You can require that the employee provide notice as soon as practicable (which might be before or after the start of his scheduled work). You cannot require an updated medical certification earlier than the duration of the prior certification or every 30 days (whichever is longer), but you can require it more frequently if you have a strong reason to think that the employee is abusing his right to intermittent leave or if the employee’s absences are different from what the medical certification anticipated. In any event, you can request an updated certification every six months. And remember that you may deduct from an exempt employee’s salary for any qualifying FMLA leave, including intermittent leave. But watch out for state law implications here. For example, if the leave qualifies under Oregon’s family leave law, but not FMLA, you may not make salary deductions. This is a delicate area. If you are thinking about denying leave, investigating potential abuse, or deducting from an exempt employee’s salary, consider consulting legal counsel first.
- I can safely fire an employee who has exhausted all his FMLA and state leave.
By now you know the answer: No. Once an employee has exhausted his available FMLA leave, the employer needs to consider whether the ADA might apply and, if it does, whether an extended leave is a reasonable accommodation. Twelve weeks of FMLA leave can easily turn into a six-month leave or more under the ADA. Alternatively, it might be clear that the employee is not a qualified individual with a disability and you don’t need to provide additional leave as an accommodation. But, either way, you need to go through the evaluation.
- It is entirely appropriate to have a policy that forbids employees from sharing salary and bonus information with each other.
Nope. Even in non-unionized workplaces, the National Labor Relations Board takes the position that workers must be free to discuss pay and other workplace issues among themselves, and an employer that prohibits such discussion is interfering with the employees’ rights under Section 7 of the National Labor Relations Act to engage in protected concerted activity. President Obama even issued an Executive Order on the subject. The Oregon legislature recently passed (and the governor signed) a bill containing a very similar rule. The new Oregon law grants employees the right to sue their employer if the employer retaliates against them for sharing wage information.
- When it is necessary for workplace collegiality and decorum, an “English Only” policy is permissible.
Be careful here. It is unlawful to have a policy that requires that English be spoken at all times, even during lunch and breaks. And it is unlawful to have a policy that requires that English always be spoken while working, unless it is reasonably necessary for the safe and efficient operation of the business.
- It is perfectly lawful to deduct from an employee’s paycheck when he admitted stealing property from work.
Under federal law, you can do this so long as taking the deduction doesn’t result in the employee receiving less than the minimum wage (because there is no federal law about permissible paycheck deductions). But most states have laws restricting what can be deducted from an employee’s pay. In Oregon, this deduction would not be lawful. So, if you are in a state like Oregon, how do you collect from an employee who has stolen from you or damaged your property? Small Claims Court.
- If I’m a federal contractor, I only have to pay the federal minimum wage.
- I don’t have to pay an intern, so long as she is getting school credit for her work.
Wrong. An intern must be paid at least minimum wage unless the arrangement meets strict requirements. Basically, if the employer is benefiting from the arrangement, it is unlikely that the internship can be unpaid. Receipt of school credit is one factor, but it isn’t the controlling factor.
- I can refuse to hire my employee’s wife because we don’t hire relatives.
Some states, like Oregon (see ORS 659A.309), prohibit an employer from refusing to hire a person simply because that person is related to a current employee. Of course, it is perfectly acceptable to prohibit an employee from having supervisory authority over a relative.
- It is fine to allow an employee to combine her breaks and meal period at the end of the day so she can leave early.
Employment law is paternalistic. Often, even if the employee wants something (like comp time instead of overtime) the rules don’t allow it. Here, the idea is that breaks and a meal period are necessary for the health of workers and must therefore be spaced out appropriately. Although there is no federal law dealing with breaks and meal periods, most states regulate when they must be taken.
- One way to eliminate the riffraff is to ask on the job application whether the applicant has ever been convicted of a crime.
Not so fast. The EEOC has long been concerned about the use of arrest and conviction records because it believes that their use has an adverse impact on minorities. That agency’s Enforcement Guidance on the topic contains much useful information. Just as important, the “ban the box” movement, which is an effort to pass state laws that prohibit asking for criminal history on a job application, has been spreading across the country. As of this writing, 13 states and many, many cities and counties have passed such laws. Oregon’s “ban the box” law became effective January 1, 2016, and Portland’s more-restrictive law takes effect July 1.
- So long as I have a contract with her, it is fine to classify a worker as an independent contractor.
The “gig” economy has certainly increased awareness about the appropriate classification of workers. Just having a contract with a person does not make her a contractor. The rules about classification of workers as employees or contractors are unusually complex and can be frustrating to apply. Generally speaking, if the employer is controlling not just the results of what the person produces, but also the manner and means in which the work is performed, that person will be an employee regardless of whether the two believe they have an enforceable contract, and even if the relationship is temporary. Both federal and state law may apply. This is a fruitful area for class action attorneys, so if you tend to classify workers as independent contractors when the worker wants to be treated that way, or to save yourself on payroll taxes, you should probably evaluate whether you are appropriately classifying workers.
- You can believe everything you read on the internet about employment law, and everything else for that matter, including a frozen Walt Disney.
So, we have debunked 15 common HR Urban Legends, but there are many more. We also refer to them as “traps for the unwary,” and like a hunter who baits that trap, plaintiffs’ attorneys prey on them. Some even specialize in them. And, even with respect to the 15 discussed here, you should note that there are nuances and exceptions to many of these rules that space does not permit me to address here. Employment law is nothing if not complicated. When in doubt, call your lawyer.