Top Ten Employment Law Questions

Gaining a broader understanding and awareness of employment laws will decrease the likelihood that a business will unknowingly commit a crime, so the following questions and answers have been developed to help everyone understand common employment laws.

When does an employer have to pay overtime?

The Fair Labor Standards Act (FLSA) requires that employers pay non-exempt (hourly) employees a rate of one-and-a-half times their regular pay for any hours worked greater than forty per week. However, consult a state’s Department of Labor website because some states require that employers pay employees overtime for excess hours worked each day.

When is an employer required to give employees breaks and lunches?

Federal law does not require an employer to provide breaks. However, many states require that non-exempt employees and contingent workers be given one paid 10-minute break for every four hours worked and one unpaid 30-minute lunch when an employee’s shift lasts longer than six hours.

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An employer should always make cuts equally across all employees and provide written notice at least thirty days prior to the reduction. Furthermore, an employer cannot make pay determinations based on an employee’s age, race, skin color, religion, national origin, sex/gender, disability/veteran status, or marital/parental status.

What is the proper way to handle employment verifications?

When providing employment verifications, an employer can only release details on a former employee’s dates of employment and position(s) held within the company. If asked, an employer can state whether an employee is eligible for rehire, but an employer should not provide specific details regarding poor performance. Furthermore, an employer cannot disclose a current employee’s rate of pay without first obtaining the employee's consent.

What questions cannot be asked during an interview?

An employer cannot ask a candidate questions relating to his or her age, religion, national origin, or marital/parental status unless it is considered a Bona Fide Occupational Qualification, which means the potentially discriminatory qualification is justifiably necessary to perform the position being filled. Additionally, an employer cannot ask whether a candidate has a disability, but the hiring manager may ask whether the candidate can perform the job functions with or without reasonable accommodation.

What paperwork should be kept in an employee’s personnel file?

An employee’s personnel file should contain a signed offer letter, a signed acknowledge confirming receipt of an employee handbook, any formal performance reviews or informal emails regarding performance/attendance issues, and any documentation of written or verbal communication to the employee regarding future compensation and positions. An employee’s personnel file should never have documents pertaining to an employee’s medical conditions, benefits elections, injuries or illnesses, medical leaves of absence, or immigration/resident status (I-9 forms and visa documents).

What does Employment-At-Will really mean?

Most states have an Employment-At-Will law, which allows an employee or employer to terminate an employment relationship at any time, with or without notice, and with or without reason. However, when terminating an employee, it is good business practice to provide just cause to reduce the possibility of discrimination charges brought on by a disgruntled former employee.

Is an employer obligated to provide maternity, parental, or other leaves of absence?

The Family Medical Leave Act (FMLA) requires employers with fifty or more employees to provide eligible employees up to twelve weeks of unpaid, job protected leave for covered medical reasons. Eligible employees must have worked a minimum of 1,250 hours in the twelve months prior to the leave and must be taking leave to care for a new child (due to birth, adoption, or foster care) or to care for a seriously ill spouse, child, or parent.

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The Occupational Safety and Health Administration (OSHA) requires that an employer provide employees a workplace that is free from hazards that are likely to cause serious injury or death. Employees have the right to refuse to work in conditions that would be considered reasonably dangerous or life threatening. However, if an employer addresses the unsafe conditions in accordance with OSHA policy and the employee continues not to work, there may be legal grounds for termination.

How do I learn more about my state’s employment laws?

States often modify federal laws to better protect employees. When this happens, a state’s Department of Labor website should be consulted to determine what regulations are expected to be followed above and beyond what federal law dictates. If there is ever any question on which law, federal or state, trumps the other, one should abide by the most stringent law, which is usually the one that provides the greatest protection for employees.

For more information on any of the employment laws covered in this article, please visit the U.S. Department of Labor website at www.dol.gov. You may also contact your state labor office listed at http://www.dol.gov/esa/contacts/state_of.htm.