Our HR Professionals answer commonly asked HR questions on a variety of topics such employee compensation, employee disability, HR administration and more.  This page is updated often with additional questions and answers.

Employee Compensation FAQ’s

Question: Are we allowed to give employees medical reimbursements in their paycheck in lieu of offering insurance?

Answer: The IRS prohibits employers from offering stipends or reimbursing employees for individual health plans, regardless of the tax treatment of the stipend or reimbursement. On the other hand, the IRS understands that employers have the right to set salaries however they like. So they will not stop an employer from setting a higher salary to offset an employee’s cost of individual health insurance. However, it is important to note that the employer should not require proof that an individual health insurance policy was purchased with the extra income. Similarly, the salary increase should not be contingent upon the purchase of individual health insurance.

Violating this prohibition comes with a stiff penalty—an excise tax of up to $100 a day per employee—for either pre-tax or post-tax reimbursements of individual health plans. Therefore, if an employer increases taxable wages to offset the cost of individual health insurance plans, the employer should not use a separate line item on employee paychecks to indicate this increase.

Question: What are the HR best practices for raises based on performance vs. raises based on market factors?

Answer: When it comes to compensation increases, a common strategy used by employers is to place an emphasis on performance as it rewards desired outcomes and motivates employees.

However, there are some downsides to basing compensation increases solely on performance. One of those is referred to as “wage compression”. This happens when new employees (whose pay will necessarily be based on the going market rate) come in at a starting salary close to or higher than your employees with tenure.

It’s very common for the market value of certain jobs to increase over time. Often this increase occurs at a higher rate than annual performance-based compensation increases, which are generally in the range of 1% – 4% of salary. As a result, new employees may end up earning close to or even more than high performing senior employees, unless of course you make a habit of taking the market value of a position into account when doing regular salary reviews.

Because of this, I recommend against taking market data completely out of compensation planning. It’s certainly okay to make performance your primary focus, but if a top performer can finagle a big raise with your competitor because the value of their position has increased at a quicker pace than their salary, they may be tempted to do so.

Question: What are the requirements for internships to be unpaid?

Answer: The DOL uses the six factors below to evaluate whether a worker is an intern or an employee for purposes of the Fair Labor Standards Act (FLSA). These six criteria must be applied when making this determination:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The intern is not necessarily entitled to a job at the conclusion of the internship;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of these six conditions are met, a company may be able to classify the worker as an unpaid intern. Keep in mind, however, that this is a very high bar to meet. More often than not, the work done by an intern benefits the employer. Consequently, it’s often safest to simply pay minimum wage and overtime (if applicable) to interns.

Question: If we gave an hour’s notice to several employees not to come into work, but some of them showed up anyway because they hadn’t checked their email. Are we required to pay them?

Answer: Yes, you will likely need to provide reporting time pay to the employees who did not receive your email before their shift. It’s my estimation that if you were challenged, employees would say they couldn’t have seen the email in time as it was sent only one hour before their scheduled start time.

In states with reporting time pay, such as your state of California, you must provide proper notice of a shift cancellation to avoid paying employees for reporting to work. There are no hard and fast rules in California about what counts as proper notice, but it should be reasonable given the circumstances.

I would recommend accounting for preparation and commute time at a minimum. The best practice would be to give notice as early as you can or, for on-call shifts that are frequently cancelled, to have employees call in at a specified time prior to the shift to find out if they are needed.

Also, please note that requiring or even permitting hourly employees to check their work email during non-working hours comes with some risk. If these employees were to read or respond to work emails, for example, they would be engaged in compensable work. You’d be required to pay them for this off-duty time, even if you didn’t authorize it. Notice by phone call is generally a better practice.

Question: I have an exempt employee who only worked one day this week, but claims he needs to be paid for the whole week. Is that right?

Answer: Quite possibly. Under the Fair Labor Standards Act (FLSA), most exempt employees need to be paid their regular salary each pay period, regardless of the number of hours they put in. However, there are some circumstances in which an exempt employee’s salary may be reduced. Under the FLSA, deductions from exempt employee pay are generally permissible in the following situations:

  • For any workweek in which they perform absolutely no work
  • In the first or last week of employment, if they don’t work the full week
  • For absences of one or more full days for personal reasons other than sickness or disability
  • For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide sick leave plan (to be bona fide the plan must provide at least five days of paid leave)
  • To offset amounts an employee receive as jury or witness fees, or for military pay
  • For penalties imposed in good faith for infractions of safety rules of major significance
  • For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions
  • When they take unpaid leave under the Family and Medical Leave Act

Unless any of the exceptions above apply, your employee should be paid his usual salary, even though he only worked one day during the week. However, if he has a vacation or paid time off bank you can certainly reduce the number of hours he has available for future use by the number of hours he missed during this week (assuming, of course, that this is a standard policy and practice).

Question: We’d like to start giving cost of living raises to employees on their anniversary dates. What’s the best way to calculate these pay increases?

Answer: When the information is available, employers typically use the consumer price index (CPI) to calculate cost of living increases. It measures the change in prices consumers pay for goods and services such as housing, food, and medical care. Most heavily populated cities have their own CPI.

Most cities often see a small increase each year, but it is important to note that the CPI can also remain the same or decrease. It’s not guaranteed that a cost of living increase will occur based on the CPI. You can find the CPI for your urban area by searching the Bureau of Labor Statistics website.

If you tie salary increases to the CPI, I recommend that your policy neither guarantee annual raises nor decrease compensation when the CPI decreases. If you choose to guarantee a raise each year, you could have a minimal percentage increase that applies in those years in which the CPI does not increase. However, I typically recommend basing pay increases on merit, market factors, and profitability of the company.

Question: An employee has requested company wage guidelines. Are we required to show these to them?

Answer: No. Some employers choose to disclose the salary ranges for jobs, but you are not required to show an employee your company wage guidelines, nor do you need to share with them what other employees make or what criteria you use to determine their individual salaries.

However, you may need to allow employees access to their own personnel file or payroll records upon request if doing so is required by state law or your company policy, and I would not advise preventing employees from discussing their wages or other terms and conditions of their employment. Section 7 of the National Labor Relations Act protects the right of employees to discuss these matters with each other.

In this case, the employee is presumably asking because they believe some wages – quite possibly their own – are not fair. They may also have information about how much their co-workers are making. I recommend that you be prepared to have a candid discussion with them about why they are paid what they are paid and the company’s compensation strategy or philosophy in general. Although you aren’t required to have such a discussion, chances are something is brewing and a conversation may help deescalate the situation and make them feel heard.

Question: Do we have to pay an employee who drove to a cancelled meeting?

Answer: No. Some employers choose to disclose the salary ranges for jobs, but you are not required to show an employee your company wage guidelines, nor do you need to share with them what other employees make or what criteria you use to determine their individual salaries.

However, you may need to allow employees access to their own personnel file or payroll records upon request if doing so is required by state law or your company policy, and I would not advise preventing employees from discussing their wages or other terms and conditions of their employment. Section 7 of the National Labor Relations Act protects the right of employees to discuss these matters with each other.

In this case, the employee is presumably asking because they believe some wages – quite possibly their own – are not fair. They may also have information about how much their co-workers are making. I recommend that you be prepared to have a candid discussion with them about why they are paid what they are paid and the company’s compensation strategy or philosophy in general. Although you aren’t required to have such a discussion, chances are something is brewing and a conversation may help deescalate the situation and make them feel heard.

Employee Benefits & Disability FAQ’s

Question: Can an employee returning from FMLA leave be placed in a different role with the same level of pay?

Answer: Upon return from a leave taken pursuant to the Family and Medical Leave Act (FMLA), an employee must be restored to his or her original job or to an equivalent job with the same pay, benefits, and other terms and conditions of employment. The new position must involve the same or substantially similar duties and responsibilities and require substantially equivalent skill, effort, responsibility and authority in order to be considered a truly equivalent position.

We recommend that employees be reinstated to the same exact position whenever possible as courts have generally been reluctant to find different positions as being equivalent if there is any change in reporting relationship, skills used on the job, status of the position, or basic duties. It can be very difficult to find alternative positions that will meet all the requirements of being equivalent.

The same pay alone in a new role would be a different position. Additionally, even when the base pay is the same, according to the Department of Labor (the agency that enforces the FMLA), equivalent pay includes the same or equivalent pay premiums, such as shift differentials, and the same opportunity for overtime as the job held prior to FMLA leave.

One exception to this is when the position no longer exits due to unrelated factors. In other words, an employee on FMLA leave, is not protected from actions that would have affected him or her if the employee was not on FMLA leave. While position changes due to unrelated restructuring are allowed under the FMLA, these situations do increase the risk of liability should the employee make a claim of retaliation, as the employer will bear the burden of proving that the changes were completely unrelated to the FMLA leave.

We recommend that employers either take this chance to cross train existing employees or hire temporary staff to fill the role of the worker on FMLA leave. In any case, the employer should notify the replacement worker that the change is temporary and will end upon return of the employee on FMLA leave.

Question: Our employees are mostly remote workers. Do we have to provide their workstation desk and chair or are the employees responsible for this equipment?

Answer: You can provide this equipment for your remote employees, but you usually do not have to do so.

In some states (such as California), an employer is required either to provide employees with the tools and items necessary to complete the job or to reimburse employees for these expenses. However, workstation equipment like desks and chairs is usually not included in this category of necessary items.

The advantage of providing such equipment is that employees may be happier with their work situation and might use company equipment in a safer manner than they would their own. The disadvantage is shipping costs and the potential for waste. Some employees may not want this equipment in their homes, already having their own preferred workstation.

In nearly every telework arrangement I have been involved in or analyzed, the employee provided their own workstation. The bottom line is that employees can often work wherever they prefer: a home office, their kitchen, the local coffee shop. The place an employee does their work is really up to them. In addition, OHSA has stated that they have no intention to inspect employees’ homes for workplace safety. The safety of an employee’s home workstation is their own personal responsibility.

There is one exception, however. An employee might request a device or some form of furniture as a reasonable accommodation under the Americans with Disabilities Act (ADA) so they can perform the essential functions of their job. In such cases, you would consider it like any other ADA request. Providing a back support cushion or computer stand, for example, would probably not be an undue hardship, and therefore something you should do.

Question: My employee told me that he is having dizzy spells that make it impossible to do some of his job duties. What steps should I take now?

Answer: As a company with 15 or more employees, you are subject to the Americans with Disabilities Act (ADA). Under the ADA, employers must provide reasonable job accommodations for workers with disabilities unless such accommodations would impose an undue hardship on the business. When an employee makes you aware of a potential medical condition, you should begin the ADA interactive process. Simply put, the ADA interactive process is a series of conversations or communications between the employer and the employee to help the parties assess and address an employee’s need for a reasonable accommodation under the ADA in order to continue to perform the essential functions of the job.

Open a dialogue with the employee as soon as possible about what accommodations he may need. Don’t make any promises about what you can do at this point. This is an opportunity for you to collect the information you will need to decide what the company can and cannot reasonably provide. As part of the interactive process, you should:

  • Analyze the specific job position involved to determine its purpose and essential job functions;
  • Identify the employee’s precise limitations and collect supporting medical documentation; and
  • Explore the possible accommodations and assess whether those accommodations would be effective and reasonable.

For this situation, you will likely want to look into whether the duties that the employee cannot do are essential to his job. If they are, you will want to explore possible accommodations such as finding a way that he could sit to complete the tasks (if standing increases the dizziness, for example). The employee himself may have some suggestions for a reasonable accommodation.

Document your discussions with this employee and any actions that you take and why. Having records of your good faith efforts to accommodate the employee may provide you with protection should you ever be challenged in regards to your actions concerning this employee.

Ultimately, your goal under the ADA is to find a way for the disabled employee to continue to contribute to your operations while accommodating the restrictions resulting from his disability. There may be situations where the only accommodations possible would cause significant difficulty or expense for the business. In those cases, there may be no way for the employee to continue to work at your company. Any consideration of termination, however, should be reserved until after you have completed the ADA interactive process.

Question: We received an application from someone who has worked for our grocery store in the past. A few of our current employees tell me that this applicant has been in and out of the hospital lately due to severe back pain. Is this something we can ask him about during the interview?

Answer: According to the Americans with Disabilities Act (ADA), an organization may not ask an applicant about any disabilities prior to making at least a conditional offer of employment. The only disability-related question you may ask pre-hire is, “Are you able to perform the essential functions of this job?” or “Are you able to perform the job duties that I have described to you?” In order to get the most useful answer to this question, you should ensure that applicants have been informed of what the essential functions of the position are through a detailed job posting, explanation during the interview, or, as a best practice, both.

In this case, the alleged back pain may no longer be troubling the applicant or, if it’s still a problem, it may be something you can reasonably accommodate. Either way, you shouldn’t ask about it. If the applicant believes he will need an accommodation, it’s his responsibility to inform you of the disability and request an accommodation. If you were to ask about the back pain or hospital visits and then not hire the applicant, he could claim that your decision was based on his disability, or was made because you regarded him as disabled, and was therefore unlawful discrimination. Additionally, you should not solicit any further information about the applicant’s condition from your current employees – any information that would be illegal to gather from him pre-offer is also illegal to gather from other sources.If you decide to hire the applicant and extend a job offer, then you could request a medical examination or inquire about disabilities. However, you should do this only if you will be asking the same of all other employees hired into that type of position.

Question: We have an employee who is no longer physically capable of performing her job. We have tried to accommodate her by giving her extra time off and reducing her hours from full-time to part-time. Unfortunately, her condition has not improved and it’s affecting her overall job performance. We are at the point where we may need to let her go. Is there anything else we need to do?

Answer: The first thing you’ll want to do is make sure that you’ve gone through the interactive process under the Americans with Disabilities Act (ADA) and have determined whether there is a reasonable accommodation that can enable your employee to work. The ADA interactive process is a series of conversations or communications between the employer and the employee. It’s designed help the parties assess and address the employee’s need for a reasonable accommodation and ability to perform the essential functions of the job.

An employer must provide a reasonable accommodation unless it causes the employer an undue hardship. What the accommodation is and whether there might be an undue hardship is case-specific to each situation. An undue hardship defense can be challenged, though, so we recommend that all steps of the interactive process and any accommodations you make are documented internally for your records.

Please keep in mind that an unpaid leave of absence can be considered a reasonable accommodation, if it is likely to return the employee to work. Additionally, the ADA can require leaves beyond the 12 weeks required under the Family Medical Leave Act (FMLA) as a reasonable accommodation. You don’t have to accommodate an indefinite leave of absence, however.

In the event that you haven’t involved the employee’s medical provider in determining whether there are possible reasonable accommodations, I recommend that you provide the employee with a medical inquiry form along with her job description to give to her doctor.

Once you have more information from the doctor about recommended accommodations, you will be able to evaluate whether you can provide the reasonable accommodation, suggest an alternative, or deny the requested accommodation as an undue hardship as detailed below.

The first two options above are the safest solution and should be tried first as they show good faith on the part of the employer. If the employee wants an accommodation such as an amount of leave beyond what you can reasonably provide, you may need to consider a termination based on an undue hardship claim. However, assuming a medical provider certifies your employee has a disability under the ADA, I would advise proceeding with caution if you assert that the leave is an undue hardship, and be aware that this may contain some level of risk to the employer. To be on the safe side, you may wish to have an employment attorney review your undue hardship defense.

Question: An employee of ours has gone on FMLA leave to care for a family member, and she asked us via email to tell her co-workers the reason she’s taking time off. Is this okay?

Answer: In general, when an employee is out, I recommend informing coworkers only that the employee is on a leave of absence. The reasons for the leave are not any of the coworkers’ business, and the employee might not want the reasons known by others. Moreover, sick leave, family leave, and disability laws often specifically protect this information.

In this case, since this employee has specifically asked you to inform the other employees that she will be out on a “family care” leave, and you have this request from the employee in writing, you should be fine sharing this information. In the absence of any such written request from an employee, however, I would recommend defaulting to stating only that an employee is off work on a leave of absence, letting the employee share additional information at their discretion.

Question: What happens if an employee’s FMLA time has run out, but they say they’re not able to return to work?

Answer: Even if an employee has exhausted their FMLA leave for the year, their condition may fall under the Americans with Disabilities Act (ADA). Under the ADA, a disabled employee is one who has a physical or mental impairment that substantially limits one or more major life activities such as seeing, hearing, speaking, walking, performing manual tasks, and working. If the employee’s condition is covered by the ADA, they would be entitled to continued job protection while on a leave of absence, so long as their leave did not create an undue hardship for the company.

If the employee contacts you about needing an extension of the leave, you should engage in the ADA interactive process to determine if their condition makes them eligible for ADA leave and how much additional time they would need before returning. As part of the interactive process, you may request medical documentation supporting an accommodation request. You can then look at whether the additional leave is something you can grant without it causing an undue hardship. Be aware, however, that “undue hardship” is a high bar to pass.

You could also choose to offer additional leave to an employee even if their condition did not require coverage under the ADA (employers occasionally want to do this with top performers). But keep in mind that doing this would set a precedent for future requests, so it should be carefully considered.

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.

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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