Employers must follow a number of increasingly complex federal, state, and local laws. Certain myths surrounding these laws can make it even harder to comply. Below, we debunk 10 myths that employers may encounter.
Myth: When federal, state, and local laws conflict, the employer gets to choose which one to follow.
Fact: When federal, state, and local laws conflict, the one most generous to the employee generally applies. For example, if an employee is covered by the federal, state, and local minimum wage, the employee is entitled to the highest minimum wage among the three.
Myth: It’s a best practice to ask about criminal history on application forms.
Fact: In numerous jurisdictions, employers are prohibited from asking about criminal history on application forms. In many cases, these laws require employers to wait until later in the pre-employment process, such as after a conditional job offer, before asking about criminal history. While there is no federal law specifically prohibiting employers from asking applicants if they’ve ever been convicted of a crime, the Equal Employment Opportunity Commission (EEOC) recommends employers avoid asking for this information on an application form. If and when employers do ask about convictions later in the selection process, the inquiries should be job-related and consistent with business necessity.
Myth: An employee’s hours may be averaged over two workweeks when determining whether the employee is due overtime.
Fact: Under the Fair Labor Standards Act (FLSA), non-exempt employees must be paid overtime for all hours worked over 40 in a workweek. Check your state law for any additional overtime requirements. The FLSA does not allow employers to average an employee’s work hours over two or more weeks, regardless of the employer’s pay schedule. Therefore, if an employee works 50 hours in one workweek, the employee is entitled to overtime for that workweek even if the employee works 30 or fewer hours in the following/preceding workweek.
Myth: Employers don’t have to worry about paid sick leave laws if their business is located in a jurisdiction that doesn’t require it.
Fact: Coverage under many state and local paid sick leave laws is generally based on where the employee works, not where the business is located. Therefore, these laws may apply to you if you have employees working in a covered jurisdiction, even if your business is based elsewhere. Check your applicable law to confirm which requirements apply to your business.
Myth: If an employee exceeds an employer’s policy on the maximum number of absences, the employer can discipline the employee, regardless of the reason for the absence.
Fact: This is commonly known as a no-fault attendance policy. Under such a policy, employees are subject to discipline if they are absent or tardy a certain number of times, regardless of the reason. However, these types of policies are problematic if an absence is protected under federal, state, or local law and the employer still counts the absence against the employee. For example, employees who have the right to leave under the Family and Medical Leave Act cannot have that leave count against them when the employer evaluates their attendance/performance.
Myth: Employers can prohibit employees from discussing their salaries with co-workers.
Fact: Section 7 of the National Labor Relations Act (NLRA) gives employees the right to act together, with or without a union, to improve wages and working conditions. Most employers are covered by the NLRA, regardless of whether their employees are unionized. The National Labor Relations Board (NLRB), which enforces the NLRA, and many courts have found that policies and rules that prohibit employees from discussing their pay (or other terms and conditions of employment) violate the NLRA. Some states also have enacted laws protecting employees who discuss their pay with co-workers.
Myth: Small employers don’t have to worry about the Affordable Care Act (ACA).
Fact: While the employer mandate provision of the ACA applies to employers with 50 or more full-time and full-time equivalent (FTE) employees, some of the ACA’s other provisions apply to all employers. For instance, all employers must generally provide employees with a notice of healthcare options, a summary of benefits and coverage, a uniform glossary of medical and coverage terms, and reasonable break time for employees to express breast milk for their nursing child. There are also minimum requirements that apply to all employer sponsored health plans.
Myth: Employees who quit are never entitled to unemployment benefits.
Fact: While most employees who quit aren’t eligible for unemployment benefits, the fact that an employee quits doesn’t always disqualify them. To receive benefits, employees who resign must generally show that they quit for “good cause” (typically attributable to the employer). While “good cause” varies by state, employees who quit as a result of retaliation, to care for a sick family member, or a significant reduction in hours/pay may be eligible for unemployment benefits. Eligibility rules vary, so check your state law for details.
Myth: Employees must specifically ask for a “reasonable accommodation” for a disability.
Fact: A reasonable accommodation is a change in the work environment or in the way work is customarily done that enables an individual with a disability to perform the essential functions of the job. The employee doesn’t need to use the words “reasonable accommodation” to notify you that they need an adjustment or change at work due to a health or medical condition or disability. For example, “I’m having trouble getting to work on time because of medical treatments I’m undergoing,” could be considered a request for a reasonable accommodation. If the initial communication is unclear, ask the individual if they are requesting a reasonable accommodation. Once you’re put on notice that an employee may need a reasonable accommodation, work with them to identify an effective accommodation.
Myth: All employee records should be kept in the employee’s personnel file.
Fact: Some laws specifically call for certain records to be kept in a separate confidential file. It is also a best practice to keep certain documents separate from personnel files. This includes:
- Any information reflecting an employee’s membership in a protected group, such as their voluntary self-identification of gender, ethnicity, race, veteran’s status, or as an individual with a disability.
- Any document relating to an employee’s health or medical condition or history (and in some cases a family member’s medical information), including any doctor’s notes and medical certification forms, drug test results, and leave of absence requests based on an employee’s injury or disability, or benefits information that contains protected health information.
- I-9 forms and supporting identity and work authorization documents. It’s a best practice to store all I-9 forms together in one file, since they must be produced promptly following an official request.
- Records concerning workplace investigations (written statements from all relevant parties, interview notes, final investigation report, etc.) should be kept in a separate workplace investigation file.
- Other protected information, including child support or wage garnishment information, background and credit reports, grievances and litigation documents.
Become familiar with the laws that apply to your business and train supervisors on how to comply to help ensure your company doesn’t fall victim to one of these myths.