Our HR Professionals answer commonly asked HR administration questions.  For more frequently asked questions, check out our other faq pages on employee compensation and employee benefits & disability.

HR Administration FAQ’s

Question: Our HR person received an email from the CEO requesting copies of employee payroll records, but the CEO did not send this email. Could this be a phishing scam?

Answer: Yes, this is probably a phishing scam. Inform your IT staff right away, and do not respond to the email. This troubling scam has been particularly prevalent this tax season.

Last spring, 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. The IRS gave examples of what the emails might say:

  • Kindly send me the individual W-2 (PDF) and earnings summary of all W-2 of our company staff for a quick review.
  • Can you send me the updated list of employees with full details (name, SSN, date of birth, home address, salary).
  • I want you to send me copies of employees’ W-2 wage and tax statements for 2016 . I need them in PDF file type; you can send it as an attachment. Kindly prepare the lists and email them to me asap.

The scammers then attempt to use the information to file fraudulent tax returns and engage in other criminal activity. For employers, a successful scam can be a costly data breach with legal consequences. For example, if an email account is hacked or accessed by an outside party, everything in the email account might be accessible to ne’er-do-wells. 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.

– Eric, SPHR, SHRM-SCP

Question: Our organization is considering a “work-from-home” program. Do you recommend any specific guidelines or restrictions?

Answer: If you decide to offer a telecommuting program, we recommend you create a policy and follow it consistently. Additionally, any employee who telecommutes should sign an agreement stating that they have read and understood the policy and acknowledge that any violations of the policy may result in disciplinary action.

When crafting a policy, we recommend you do the following:

  • Have all telecommuting arrangements made on a case-by-case basis and with advance approval, based on the needs of the company.
  • Institute a system for tracking the hours of non-exempt employees.
  • Require a trial period for all telecommuters.
  • Give consideration to operational requirements, the job duties of the employee, and the employee’s work performance and attendance.
  • Communicate clear performance expectations for work done outside the office.
  • Note that the company will not be responsible for costs associated with initial setup of the employee’s home office or for repairs or modifications to the home office space, unless the employee will need a particular set up that you would like to provide. Note also the expectation that telecommuting employees keep their work spaces safe (e.g., no loose cords along walkways).
  • State that any equipment supplied by the company should be used for business purposes only, appropriately protected from damage and theft (e.g., locked drawers, password maintenance) and returned to the company upon termination of employment.

If you have any telecommuting employees who are not regularly in the office, we recommend you send them all required state and federal employment notices (posters on minimum wage, family leave, etc.) to ensure you’re in compliance. You might also consider supplying employees who telecommute with appropriate office supplies or reimbursing them for any other approved business-related expenses.

Telecommuting can be a good work arrangement in certain circumstances, but you should be clear about the purpose it serves and what your expectations are for employees who work outside the company office.

Question: What are the posting location guidelines for federal workplace posters?

Answer: Generally, federal workplace posters must be displayed in conspicuous places where they are easily visible to all employees. Some states have their own workplace posters and posting requirements as well. To comply with these legal requirements, employers typically place all workplace posters in a break room or similar location frequented by employees.

Interestingly, the Family Medical Leave Act (FMLA), Equal Employment Opportunity (EEO), and Employee Polygraph Protection (EPPA) posters must be placed where they can be seen by applicants for employment.

I would suggest that you keep the posters in a breakroom or lunchroom. That way it can never be said that employees don’t have access to the required postings, and you won’t jeopardize your compliance with the posting requirements.

Question: We employ a part-time worker who also does occasional contract work for us. Is it okay that we pay this worker as both a W2 employee and as an independent contractor?

Answer: Typically a worker cannot be both an employee and an independent contractor for the same company.

An employer can certainly have some employees and some independent contractors for different roles, and an employee for one company can perform contract work for another company. It is only in very unusual situations, however, that a person will have one role as an employee and another role as an independent contractor for a single company.

The IRS and the U.S. Department of Labor have specific criteria for determining who is an employee and who may be classified as an independent contractor. These criteria focus on the overall relationship workers have with their employer. Workers who are economically dependent on an employer and look to that employer to tell them how and when the tasks that make up their job are to be done are employees. Workers in business for themselves who retain more control over how the finished product is achieved are independent contractors.

The government is cracking down on misclassification of workers, so you definitely want to make sure you’re classifying this person correctly. Classifying the worker as both employee and contractor can be a red flag for the IRS. When filing taxes, the individual will be reporting wages earned (via a W-2) as well as earnings as a self-employed individual (via a MISC-1099) which may invite an IRS investigation into the actual circumstances.

Your safest course would be to classify and pay this worker entirely as an employee for all the tasks they perform. This way you avoid the risks of misclassification and ensure that the employee receives the appropriate legal protections. However, if the employee has an established outside business, and the contract work the employee is doing for you pertains to this outside business and not to their employment duties, then you may treat the employee as an independent contractor for such work. For example, if you have an employee who works as a bookkeeper for you but also has a side photography business, you may be able to hire them as an independent contractor for the sole purpose of taking company portraits.

Question: How do I proceed when a recently married employee has provided documentation to change their legal name?

Answer: There are a few administrative considerations when an employee undergoes a legal name change.

First things first, you’ll need the employee to provide a copy of their updated Social Security card with their new name, since the IRS requires the Social Security card to match the payroll records. You’ll also need the employee to provide an updated W-4, since the IRS requires that the name on the Social Security card match the one on the W-4 and W-2 forms.

An employer is not required to update an employee’s I-9 after a legal name change, and an employee is not required to provide documentation to show that they have changed their name for the purpose of the I-9. (Federal contractors may have different rules.) However, the US Citizenship and Immigration Services (USCIS) recommends maintaining correct information on I-9s. In order to update the employee’s original I-9, enter their new legal name in Box A of Section 3, and then sign, date and print your name on the final line. As a reminder, the current version of the I-9, which technically expired on 3/31/16, is still valid until an updated version is published by USCIS.

Lastly, you’ll want to make changes to the employee’s various benefits paperwork and offer the employee an opportunity to make changes to their beneficiary forms as needed. You may request an updated version of their Driver’s License if driving is a job duty, and you’ll likely want to update company phone lists, email accounts, business cards, etc.

Question: What should we do when an employee refuses to sign the handbook because of our request to keep pay information confidential?

Answer: Discussing wages or salary is considered protected activity under the National Labor Relations Act (NLRA), so you should not take any action – in policy or in practice – to prohibit employees from discussing their pay, nor should you discipline employees for doing so.

More specifically, Section 7 of the NLRA protects the rights of employees to act together to try to improve their pay and working conditions or to fix job-related problems. Although it may not seem like they are trying to improve things by complaining, their discussions are very much a protected right. The National Labor Relations Board (which enforced the NLRA) has been ruling in favor of employees on this this matter since the 80s.

I therefore recommend that you remove the language from your handbook about wage information being confidential. Your best defense against tension and complaining about wages is to ensure that pay rates are fair and that any differences in wages between employees in similar jobs have legitimate justification.

Question: Our HR person received an email from the CEO requesting copies of employee payroll records, but the CEO did not send this email. Could this be a phishing scam?

Answer: Yes, this is probably a phishing scam. Inform your IT staff right away, and do not respond to the email. This troubling scam has been particularly prevalent this tax season.

Last spring, 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. The IRS gave examples of what the emails might say:

  • Kindly send me the individual W-2 (PDF) and earnings summary of all W-2 of our company staff for a quick review.
  • Can you send me the updated list of employees with full details (name, SSN, date of birth, home address, salary).
  • I want you to send me copies of employees’ W-2 wage and tax statements for 2016 . I need them in PDF file type; you can send it as an attachment. Kindly prepare the lists and email them to me asap.

The scammers then attempt to use the information to file fraudulent tax returns and engage in other criminal activity. For employers, a successful scam can be a costly data breach with legal consequences. For example, if an email account is hacked or accessed by an outside party, everything in the email account might be accessible to ne’er-do-wells. 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.

Question: Is it okay to wish our employees a happy birthday on our company social media page?

Answer: 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 acknowledgement 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 they 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, such as a gathering with cake, ice cream, or cupcakes, 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 camaraderie and morale, while avoiding shining too bright of a spotlight on any given employee on a particular day.

Question: Can I ban cell phones at work? How about audio and video recordings?

Answer: Yes, you can limit or even prohibit use of cell phones during work hours. Employees can be expected to give their undivided attention to the work you pay them to perform, and if that means cell phones need to be turned off or put away, you are entitled to make this request. However, employees should be allowed to use cell phones during their break and meal periods, as this time needs to be truly their own in order to satisfy the requirements of state law. Fair warning: if you attempt to prohibit cell phone use during all non-break time, you may receive some fairly aggressive push back. A more lenient policy may do the trick. Our standard language says, “Personal cell phone use should be kept to a reasonable limit during working hours. Reasonableness will be determined by your manager.” This language gives your managers considerable discretion, but they should be trained to use the same standard of reasonableness for all employees to avoid claims of discrimination.

To answer your second question: no, audio, video, and photography cannot be strictly prohibited, but they can be limited. The National Labor Relations Board, which enforces the National Labor Relations Act, has said that employers cannot outright prohibit recordings as this could interfere with employees’ ability to organize with respect to their terms and conditions of employment. For instance, employees might choose to record a conversation during their lunch hour related to asking for raises, and want to share that recording with employees who work different shifts. This would need to be allowed. However, you can still have a policy that prevents recording (via audio, video, or photograph) confidential information, such as proprietary business practices, customer lists, client or patient information, or employees’ personal information. Be aware that you cannot deem all information confidential, e.g. “all conversations in the office” or “anything related to customer/patient care.”

If you feel it is important to have such a policy (for reference, this is not one we generally include with the handbooks we make for clients), I suggest something like, “Audio and video recording devices, including cameras and smartphones, may not be used to record or capture any confidential information, whether it is proprietary business information or clients’ or employees’ confidential personal information. If recording non-confidential information, e.g. taking photos of colleagues, please seek the consent of all parties to the recording.” A policy like this can be added to your handbook during your next handbook review, or if you feel the need is urgent, you can distribute it to all employees now and have them sign an acknowledgement form.

Question: Do we need to investigate rumors of harassment even if no one has made a complaint?

Answer: 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.

Question: Can we ask references about an applicant’s previous use of sick time?

Answer: I strongly advise against making any inquiries into their history of calling in sick. Asking about absences due to illness or injury could run afoul of the Americans with Disabilities Act and give you information about an employee’s inclusion in a protected class that you’d be better off not having before hire.

Additionally, if you’re in a state that requires you to provide sick leave, making adverse employment decisions based on use of protected sick leave use (including deciding not to hire someone) could expose you to liability.

However, when calling references, it is permissible to ask generally about attendance and tardiness to get a feel for the candidate’s reliability.

Question: Can you provide guidance on what personal items are appropriate for display on employee workspaces?

Answer: 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.

Question: Can we ask an applicant why they are leaving their current job?

Answer: Yes, you may ask a candidate why they left a previous job or why they are looking to leave their current job. It’s fine to ask this question during the interview, but 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 that they provide their reason for leaving each job. When you see the reasons an applicant left previous positions, you may spot trends in the applicant’s employment history. These trends may be cause for follow-up questions during the interview or reason enough 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 all interview questions, you’ll want to redirect the candidate if they start to share sensitive information. For example, if a candidate says they left past employment due to medical reasons, you’d want to steer them away from sharing any details about the medical condition and refrain from documenting anything about it. Instead, you could ask them to simply state whether they provided notice of their need to resign and whether they left on good terms.

Question: One of our employees has chicken pox. Is it okay to tell our other employees about this condition?

Answer: I recommend informing employees that they may have been exposed to chicken pox, but I would not reveal the name of the employee who has the condition. I would also limit the announcement to those employees who have a need to know, i.e., those who may have come into contact with the infected employee or those you know to be immunocompromised.

You do not have to allow this employee to come to work while infected. However, if they say they are no longer contagious and would like to return, you can require the employee to provide a doctor’s note to that effect. Once you have the note, you can decide how best to handle the situation based on what the doctor recommends.

Question: One of our employees refuses to sign the handbook. What should we do with her?

Answer: First things first, talk to her about why she doesn’t want to sign the handbook. There may be an easily resolved misunderstanding about what her signature on this document means.

If that conversation doesn’t solve the problem, and you still want her to work for you, she needs to be told that failure to sign the handbook does not mean she is exempt from the policies and procedures within it. She will be expected to follow the same rules and will be held to the same standards as her co-workers, regardless of whether you have her signature on file.

If she persists in her refusal to sign, ask her to write “I refuse to sign” on the acknowledgement form, along with the date. You should write “employee refused to sign” along with your own signature, and if possible, call in another manager to witness this and sign off as well. Make sure you document (right on the acknowledge form is fine) that you told the employee she will still be expected to follow the policies and would be subject to discipline for falling to do so, just like everyone else.

Question: What do you advise regarding screening social media accounts during the hiring process?

Answer: We strongly recommend against reviewing a candidate’s social media accounts during the interview process. By doing so, you could be exposed to information about the protected classes to which your candidate belongs. For instance, if you went to their Facebook page, you might discover 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.

We recommend basing hiring decisions only on the information you obtain through the application, resume, interviews, and reference checks. The goal of the application and interview process is to find the most qualified candidate for the position you’re trying to fill. You shouldn’t need to get into the private lives of candidates to make that determination, and the risk of doing so makes it inadvisable in any case.

Question: Can an employer legally make their employees use their accumulated vacation hours?

Answer: Yes. An employer can tell an employee that they need to take time off. However, that rarely bodes well for the morale of the employee if they don’t want to take the time off.

Some employers have a “use-it-or-lose-it” policy where any remaining vacation time is lost if unused by a certain date. But these kinds of policies are not legal in all states. If your state doesn’t allow use-it-or-lose-it, or the employee isn’t willing or able to take off as much time as you would like, you could instead pay them for the hours they’re unable to use. This option is acceptable in every state and reduces the potential for low morale.

If you’d prefer that employees use up the time, it’s best to give them at least three months’ notice (even more is better) so they can plan for what they’ll do with their free time and coordinate with friends and family.

Be sure that you’re applying these policies and practices consistently across the organization. And if you’re introducing a new standard like use-it-or-lose-it, or payout on December 31st, make sure that employees are made aware of the policy in writing.

Answers provided by:

hr expertAngela, PHR:

Angela has extensive experience in HR, conflict management and employee relations. She spent several years working as a high volume (and full cycle) recruiter for a large multi-channel retailer. Angela earned her B.A. in English Literature and Criminology from the University of South Florida. and also holds a paralegal certification from Saint Petersburg College.

hr expertsEmily, PHR

Emily joins the team with over six years of experience in HR, primarily in the healthcare and hospitality industries. She also spent a year running a non-profit. She graduated college with degrees in Music and Entrepreneurial Business, and her passion for helping and working alongside people led her to the field of HR. In her free time, Emily enjoys traveling and home brewing with her husband.

hr expertsMargaret, PHR, SHRM-CP

Margaret holds a Bachelor of Arts degree in Psychology from Portland State University and a Professional Certificate in Human Resources Management. She has worked in a variety of HR roles in a multi-state capacity. Margaret regularly attends seminars and other continuing education courses to stay current with new developments and changes that affect the workplace and is active in local and national Human Resources organizations.

hr expertsMonica, SPHR, SHRM-CP

Monica has held roles as an HR Generalist and Payroll and Benefits manager at a large ski resort, providing HR guidance to more than 500 employees. She also has HR experience in the healthcare field and the non-profit world. Monica holds a Bachelor of Science degree from Linfield College.

 

hr expertsKara, JD, SPHR

Kara practiced employment and bankruptcy law for five years before joining us, and was a Human Resources Generalist at an architecture and engineering firm for several years prior to that. As an attorney she worked on many wage and hour and discrimination claims in both state and federal court. She holds a Bachelor of Arts degree from Oregon State University and earned her law degree from Lewis and Clark Law School.

hr expertsOphelia, SPHR, GPHR, SHRM-SCP

Ophelia has held HR roles in the financial services, healthcare, IT, real estate, and telecommunications industries. She holds a Bachelor of Arts degree in Sociology and a Masters of Business Administration (MBA) degree with a concentration in Human Resources from Willamette University. A member of SHRM since 2008, Ophelia currently serves as the Director of College Relations for a regional Human Resources Management Association.

hr expertsEric, SPHR, SHRM-SCP

Eric has extensive experience in HR, management, and training. He has held several senior HRpositions, including as the HR & Operations Manager for an award-winning interactive marketing agency and as HR Director for a national law firm. Eric graduated with a Bachelor’s of Science in Economics from the University of Oregon with a minor in Business Administration.

hr expertsRussell, SPHR, SHRM-SCP

Russell has over 13 years of union and non-union human resources experience, during 10 of which he has held regional and director level HR roles in the healthcare, hospitality, property management, and engineering industries. He holds a BA from Indiana University and is an HR Specialist honor graduate from the US Army’s Adjutant General School. Russell has been a member of SHRM since 2004 and has worked as a pro bono HR Consultant, supporting small non-profit organizations.

hr expertsRebecca, SPHR

Rebecca has a diverse background in Human Resources and Training Management from the temporary staffing and insurance industries. She has served in a variety of HR management positions, and enjoys translating complex regulatory language into “real world” scenarios, allowing her clients to quickly utilize the content in their daily activities.

hr expertSarah, PHR, SHRM-CP

Sarah has extensive Human Resources experience in the legal, software, security and property preservation industries. She has a Business Communications degree from Villa Julie College (now Stevenson University) and a master’s certificate in Human Resources Management and a Strategic Organizational Leadership certification from Villa Nova University. Sarah is also a member of the National Society of Human Resources Management and has managed the HR function for small startup companies to mid-sized/large organizations.

kyle hr expertKyle, PHR:

Kyle joined us after six years of freelance writing and editing. He has worked with book publishers, educational institutions, magazines, news and opinion websites, successful business leaders, and non-profit organizations. His book, a memoir about grief and hope, was published by Loyola Press in 2013.

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