Article provided by our partners at WFJ Law Firm and The Compliance Center
Human resources is full of misconceptions that can lead employers into risky situations. Employment laws are complex and often misunderstood. Here we highlight common HR myths and clarify the facts, so employers can make informed, compliant decisions.
Myth #1: If an employee works unapproved overtime, clocks in early, or stays late, the employer does not have to pay them. An employer must only pay employees for approved time worked.
Fact #1: The Fair Labor Standards Act (“FLSA”) requires that employees must be paid for all time worked, even unapproved time. However, employers may document and discipline employees for working unapproved time.
Myth #2: I can fire an “at-will” employee for any reason.
Fact #2: Employers may terminate an at-will employee for any reason, except for any unlawful reason such as discriminatory or retaliatory reasons (e.g., firing an employee solely because the employee requested a reasonable accommodation). Employers must be cautious when terminating an employee and ensure they have documentation to support the reason for terminating an employee.
Myth #3: An employer cannot contact an employee who is out on FMLA leave.
Fact #3: Employers may have limited contact with an employee on FMLA leave to request administrative updates and clarifications. Employers, however, can never require an employee to perform work while on FMLA leave.
Myth #4: An employer may prohibit employees from talking about their pay with co-workers.
Fact #4: Most employees have protected rights under Section 7 of the National Labor Relations Act to discuss wages and working conditions and this applies even if the employees are not part of a union. Some states also have additional protections. Under Minnesota law, employers cannot: (1) prohibit an employee from discussing his or her wages; (2) require an employee to sign a waiver that denies the employee’s right to disclose his or her wages; or (3) take any adverse employment action (e.g., fire or demote) against an employee for discussing a co-worker’s wages that the co-worker voluntarily disclosed to the employee.
Myth #5: Non-union employers do not need to follow labor laws.
Fact #5: The National Labor Relations Act (“NLRA”) applies to most private employers regardless of whether employees are part of a union. The NLRA protects employees’ rights to engage in “concerted activity,” which includes employees attempting to improve their wages, hours, and working conditions even if the employees are not part of a union.
Myth #6: If an employee says they feel uncomfortable at work but does not provide specific details or file a formal complaint, the company is not required to take any action.
Fact #6: Employers should treat every complaint seriously and promptly investigate the complaint. Employers have a duty to investigate all complaints.
Myth #7: An employer only needs to comply with the employment laws where the employer has physical offices, and the employer does not need to comply with employment laws in any states where the employer only has remote employees.
Fact #7: An employer must comply with the employment laws of the state where an employee physically performs his or her work. For example, if an employer only has an office in Minnesota, and has a remote employee in Colorado, then the employer must also comply with Colorado’s employment laws.
Myth #8: An employer who offers more PTO hours than what is required under an applicable state sick time law does not need to update its PTO policy.
Fact #8: A state’s sick time laws has requirements that a PTO policy must still comply with, such as the accrual rate or frontloaded amount, scheduling, qualifying reasons for use, increment usage, and more. Employers likely need to update their PTO policies if the employer is located in a state with sick time laws.
Myth 9: A non-FMLA covered employer may fire an employee who can no longer perform the essential functions of the employee’s job after the employee became injured outside of work and needs extended time off.
Fact #9: Many states have their own medical leave laws that provide protection for employees who are injured. Additionally, the Americans with Disabilities Act (ADA) entitles an employee with a qualifying disability to receive a reasonable accommodation to allow the employee to perform the essential functions of the employee’s job. Employers must engage in the interactive process with the employee to determine what reasonable accommodation may be appropriate for the employee. Terminating an employee shortly after an injury exposes an employer to legal claims for disability discrimination and retaliation.
Myth #10: An employee can be classified as exempt since the employee receives a salary and is therefore not entitled to minimum wage or overtime.
Fact #10: Most exempt classifications—such as the executive, administrative, and professional exemptions—require an employee to satisfy both a salary test and job duties test to be classified as exempt. Federal law and states have different requirements for both the salary test and job duties test, and employers must know which requirements they need to comply with before classifying an employee as exempt.
Please contact the Compliance Center if you have any questions.