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.


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.

Question: What is the purpose of a performance improvement plan? Can’t we just terminate employment for poor performance?

Answer: The use of a performance improvement plan (PIP) can help reduce the risk inherent in any termination. A PIP is used to help employees whose performance has slipped, become inconsistent, or otherwise needs improvement.

It’s safest to terminate an employee when you have documentation that justifies the legitimate business reasons for the termination. If you’re terminating for poor performance, this documentation should include past warnings for poor performance, explanations of the consequences for the employee if they didn’t improve, and evidence that the employee failed to do so.

A great way to do all this is with a PIP, which specifies your expectations for employee performance, defines what success looks like going forward, sets regular meetings with the employee to discuss their progress, and explains the consequences for failing to meet and sustain improved performance within an established timeframe.

If the employee continues to underperform or fails to sustain improved performance, you may need to move on to termination. If you’ve been using a PIP, you will have the documentation to demonstrate that you gave them a chance to improve. This record will make it more difficult for the employee to challenge the reason for a termination.

Question: We rehired a former employee. Do they need to fill out the new hire paperwork again?

Answer: The company has some discretion here as to whether to collect a full rehire packet or not. We generally recommend that the employee fill out the paperwork again. Keep in mind that there may be documents signed that expressly end when employment is terminated. It is also best to re-issue employment offers so that the rehire is properly documented.

It is always safer to have the rehired employee fill out more paperwork than have them not receive the updated version of a document or have them miss required forms, especially if you are in a state that has extensive new hire paperwork requirements. That said, if the employee is rehired within a few months (or some other very short time frame), you could review the employee’s file and see what employer forms haven’t changed. In either case, the employee will surely need new benefits enrollment paperwork if they are eligible.

One notable exception: If you rehire an employee within three years from the date their Form I-9 was previously completed, you may either rely on the employee’s previously completed Form I-9 or complete a new one. When rehiring this employee, you may ask them to complete a new I-9 (but you must still maintain the original I-9 for the full retention period per I-9 requirements), or you may review the previously completed I-9 and use it.

If the previous I-9 shows the employee’s work authorization is still valid, you can enter the date of rehire in Section 3, along with your name, signature, and the date. And, you may do this even if the initial I-9 is not the current, valid edition. If the employee’s work authorization has expired (as noted in Section 1 of the original I-9), you must re-verify employment authorization in Block C of Section 3 of the current valid edition of the I-9. If this section has already been used, you’ll want to print another Section 3 to complete and attach to the original.

Question: What is the technical or otherwise common definition of an employee's termination date? Is it the date the on which the termination occurs or the last date the employee performed work?

Answer: Typically, the termination date is the day that the actual termination occurred. It may or may not coincide with the final day of work, depending on the circumstances.

For example, many companies have a no-call, no-show provision in their attendance policy (e.g., three days of no-call, no-show will result in termination), after which an employee is terminated based on job abandonment. In such a scenario, the date of termination is after the third day of no-call, no-show, which does not coincide with the employee’s last day of work. Alternatively, the employer or employee may give advance notice, as is often the case when employees are simply moving on in their career or the employer is conducting a layoff. In that case, the termination date is the employee’s final day of work.

If an employee files for unemployment, the unemployment agency may request both the employee’s last date of work and the termination date. If this request isn’t made and the termination day and last work day are not the same, we still recommend providing both dates in response to the unemployment claim.

Question: We want to terminate an employee who doesn’t fit with our culture. Can we do this? Do you foresee any issues?

Answer: First things first, check your policies and any correspondence (like an offer letter) that have been given to the employee to ensure that you have established an at-will employment relationship. Most employers state that employment is at-will, meaning an employee can be terminated at any time, with or without notice, and with or without cause, for any reason not prohibited by law. If an at-will employment relationship exists, you may terminate the employee for not fitting in with your culture, but there are certainly some things to consider beforehand.

Terminated employees sometimes challenge their employer’s decision to terminate them, alleging discrimination or some other unlawful employment practice. Your best defense is to be able to provide documented reasons for every termination and demonstrate good-faith efforts on your end to help the employee improve. Simply saying the employee didn’t fit with your culture doesn’t provide much information or do anything to counter a claim that the termination was unlawful.

Therefore, think about what you mean when you say the employee doesn’t fit with your culture. If your expectations are clearly established and you can point to specific behaviors of the employee that did not meet those expectations, you may have a solid case for termination. You should also be able to show that you gave the employee a chance to improve and that you would terminate any employee under the same circumstances. In other words, you should be able to demonstrate whether an employee fits with your culture and show that the consequences for not fitting with the culture are the same for everyone. Documentation is key. If you haven’t done these things, I would not recommend termination.

Question: We have good reason to suspect an employee has been stealing from the register. How should we respond?

Answer: I would recommend suspending this employee and conducting an internal investigation. You may also want to report the theft to law enforcement depending on the circumstances.

An internal investigation generally includes interviewing any employee who may be involved and any potential witnesses about what they saw. You’re looking for firsthand knowledge, not rumors or speculation. If you have video surveillance, it should be included in your investigation file. Even if the accused employee fails to cooperate, you should still investigate as best you can and document your good faith efforts.

During the interviews, ask the employees for general information about what they know or what they saw. Formulating questions in advance helps ensure that your investigation remains unbiased and open-ended. When interviewing co-workers, be sure not to disclose which employee you suspect of stealing.

These interviews should be confidential to the extent reasonable and conducted in a discreet manner. It’s also good to have a manager or HR Representative in the interviews to serve as a third-party witness and take detailed notes. This documentation may prove helpful if the company is ever challenged regarding this situation and its outcome.

If the results of the investigation reveal that an employee did in fact engage in theft, you may opt to terminate the employee.

Question: How do we calculate whether we’re covered under FMLA?

Answer: I would recommend suspending this employee and conducting an internal investigation. You may also want to report the theft to law enforcement depending on the circumstances.

When counting your employees, you would include any employee whose name appears on your payroll any working day of calendar week, regardless of whether they received compensation for the week.

Once your organization meets the 50 employees-for-20 workweeks threshold, it remains covered until it reaches a point at which it no longer employed 50 employees for 20 (non-consecutive) workweeks in the current and preceding calendar year.

Question: If an employee puts in their notice, can we let them go that day instead of keeping them for the full notice period?

Answer: Unless there is a contract or agreement to the contrary, employers are under no obligation to keep an employee on during their resignation notice period or to provide them with compensation for the duration of that period. However, there are a couple of issues to consider before accepting an employee’s resignation early.

First, if you ask the employee not to work the remainder of the notice period and do not pay them for that time, the resignation may become an involuntary termination in the eyes of the state’s unemployment insurance department. Note that the effect of a single claim on your UI tax rate is likely to be small to non-existent. However, if you’re concerned about that, you can pay the employee for the full notice period, but ask them not to come into work.

Second, terminating the employee before their resignation period comes to an end could motivate other employees to forego giving adequate notice in the event they resign. By terminating an employee immediately, rather than letting them earn two more weeks of pay, you’re effectively telling other employees that you don’t honor notice periods. As a result, they may not see the point in giving you that courtesy.

Ultimately, the choice to terminate early – with or without pay – is up to your discretion. There are certainly good reasons to ask an employee not to return to the office once they have offered you notice. Just keep in mind that there may be other reasons to go ahead and pay them for their notice period, even if you don’t want them to continue to work.

Question: I’ve heard about the DACA program ending. What does this mean and what do I need to do?

Answer: The Department of Homeland Security (DHS) announced on September 5th that they have initiated the “orderly phase out” of the program known as Deferred Action for Childhood Arrivals (DACA). The DACA program allowed certain people (sometimes called “Dreamers”) who came to the United States as children – and who met several key requirements – to request deferred action from deportation for a period of two years. That deferred action could then be renewed, subject to approval. DACA also provides eligibility for temporary work authorization.

At this time, we don’t recommend that employers take any immediate action related to the DHS announcement. It’s important not to attempt to identify DACA recipients based on I-9s, ask employees whether they are DACA participants, or make staffing decisions based on a potential loss of work authorization. These actions could increase the risk of a charge of employment discrimination.

Please keep in mind that work authorization from the DACA program will not immediately expire due to the program phase out. According to information released by DHS, current DACArecipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked by DHS. DACAbenefits are generally valid for two years from the date of issuance. DHS will process new applications for DACA that were received prior to September 5th. Current DACA recipients with work authorization that will expire any time before March 5, 2018, will also be able to file applications for renewal up until October 5, 2017.

We recommend you complete I-9 reverification as you normally would when an employee’s temporary documents expire. At the time of expiration, if the employee can’t provide updated work authorization, they would no longer be eligible to work for you.

There are various pieces of legislation that have been introduced that would grant legal status or create a pathway to citizenship for those who were eligible for DACA. At this point we do not know what will come of them, and it’s uncertain what will happen after the phase out of DACA.

You can read more information in this DHS FAQ.

Question: Are we allowed to look through an employee's email while they are still employed?

Answer: The short answer is yes, you can monitor employee email. As a general rule, employees should not have an expectation of privacy when using company computers or email accounts. That said, the law is not perfectly cut and dry, so you should have both a legitimate business reason for doing so and a policy that puts employees on notice that you do – or could – review their email.

If you decide to monitor employee email, I recommend that you review your handbook policies, especially any that address company equipment or email usage. You should include a policy that says something along the lines of, “All Company-supplied technology, including computer systems and Company-related work records, belong to the Company and not the employee. The Company routinely monitors usage patterns for its email and internet communications. Although encouraged to explore the resources available on the Internet, employees should use discretion in the sites that are accessed.”

If you monitor company email, you should also be consistent in how you do so. For example, if you’re routinely reviewing emails to ensure that employees aren’t conducting personal business on company time, I would recommend that you do so for all employees or everyone in a specific department.

Question: Are job descriptions required by law?

Answer: Job descriptions are not required by law, but they’re certainly great to have and serve several purposes.

First, a job description, when accurately written, should reflect the actual work done. The applicant or employee can see what will be expected of them and to what they’ll be held accountable. The job description helps eliminate any confusion about what job duties are assigned to the employee. It will also prove useful when conducting performance evaluations and goal setting, as you will have a clear description of what the employee is expected to accomplish in their position.

Second, a well-written job description will list the essential functions of the job and the knowledge, skills, and abilities required to do it. This information will be useful as documentation in the event an employee misrepresented their qualifications for the position or is simply not performing to the expected standard. With a clear job description, you’d be able to terminate the employee with less risk of an unlawful termination claim.

Finally, a job description should indicate the basic expectations for the person in the position, including how many hours per week you expect from an employee, whom they report to, and whether the position is non-exempt or exempt. This allows an employee to be aware of the time commitment, whether to expect overtime pay, and whom they should go to with questions.

Question: Can the same person be both an employee and an independent contractor?

Answer: According to IRS guidelines, it is possible to have a W-2 employee who also performs work as a 1099 independent contractor so long as the individual is performing completely different duties that would qualify them as an independent contractor.

Some legitimate examples that we have seen of this circumstance are:

  • A Receptionist also owns a cleaning service business with their spouse. The company contracts with the team to perform janitorial services after hours for the office.
  • A Sales Manager also performs graphic design work for several local businesses after hours. The company contracts with the individual to create a new logo for the company.
  • A Maintenance Technician also owns a fabricating business of their own. The company contracts with the individual to fabricate equipment for the company.

An employee owning their own business is not a requirement, but rather one of the factors to consider when determining if someone may be properly classified as an independent contractor. If you feel confident in the IRS criteria on the whole, you may classify their separate work as independent contractor work. But, be sure! It is widely believed among tax professionals that having a worker receive both a W-2 and 1099 increases the likelihood of an IRS audit.

If you’d like to learn more about the IRS test for independent contractor classification, you can watch our 2-Minute HR Training on the topic or check out the Independent Contractor Classification Guide on the HR Support Center.

Question: Can an employee submit a new W-4 at any time?

Answer: Yes, an employee may submit a new W-4 anytime they have changes. Often, they’ll submit a new form when they know they’ll be changing exemptions, adjustments, deductions, or credits on their return.

For example, an employee may want to increase their withholding by decreasing the number of dependents they claim. Or they might want to add dependents to decrease the amount withheld. Life events such as marriage, divorce, and childbirth are common reasons to update a W-4, but employees can generally change their withholding allowances at any time and for any reason.

According to the IRS, employees who are making changes due to a divorce (if they’ve been claiming married status) or for any event that decreases the number of withholding allowances they can claim should submit a new W-4 within 10 days.

After a W-4 is received, the new withholding amount should be put into effect no later than the start of the first payroll period ending on or after the 30th day from when the employee submitted the replacement Form W-4.

Question: Do we need a company policy related to service animals in the workplace? What if someone asks to bring one in?

Answer: You do not need to have a specific policy on service animals for your employees. If a request comes up, I would recommend relying on your disability accommodation process and engaging in the interactive process.

First, determine if the employee has a covered disability as defined by the Americans with Disabilities Act (ADA). The best way to do this is to provide the employee with a medical inquiry form that they can have completed by their doctor. This form will help you ascertain what accommodation the employee needs to do their job and whether you, as the employer, can accommodate it or suggest alternatives.

If the employee is not disabled as defined by the ADA, you are not required to allow them to bring an animal to work. But if they provide documentation supporting their need for a service animal, you should attempt to accommodate the employee. Note that the ADA is very broad in its definition of a disability, which is why we recommend that you rely on the medical opinion of your employee’s doctor to determine whether or not a disability exists.

While emotional support animals, comfort animals, or therapy animals (I’ll call them all support animals) are often used as part of a medical treatment plan, they are not considered service animals under the ADA. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. As a result, their presence is not considered a reasonable accommodation, even with a doctor’s note.

When an employee requests permission to bring a service or support animal to work as a reasonable accommodation for a disability, the employer should recognize that the only basis for denial of this request is:

  • The employee is not a qualified person with a disability as defined by the ADA, the Rehabilitation Act, or state law;
  • The animal does not meet the definition of a service animal in the ADA or other relevant law;
  • The presence of the service animal would place an undue burden on the employer; or,
  • The presence of the service animal would interfere with the employer’s ability to conduct business.

Question: We interviewed a candidate who had the right type and length of experience, but spoke with a thick accent. Is it okay to reject a candidate because their accent made it difficult to understand them?

Answer: There is risk in rejecting the candidate based on their accent, as this may be perceived as national-origin discrimination, which is illegal under Title VII of the Civil Rights Act. The Equal Employment Opportunity Commission (EEOC) enforces Title VII, and says the following regarding accent discrimination:

In assessing whether an individual’s accent materially interferes with the ability to perform job duties, the key is to distinguish a merely discernible accent from one that actually interferes with the spoken communication skills necessary for the job. 

“Materially interferes” is the standard that will apply, but we don’t have a hard and fast definition of what that means. If you are confident that the candidate’s accent will actually prevent them from performing the functions of the job, then you could eliminate them on that basis. But if you are only speculating that it could be a problem, or are thinking it might rub other employees the wrong way, it should not be a basis for your decision.

For instance, if you were hiring for a receptionist who will interact frequently with clients on the telephone, and you had to ask the candidate to repeat themselves multiple times during the interview because they were legitimately difficult to understand, then the accent would likely be an acceptable reason to eliminate that candidate. On the other hand, if you were hiring for a dishwasher, delivery driver, software programmer, or other position where oral communication was less essential, then the accent would not be a valid reason to reject the candidate.

Question: How do I keep an employee at-will but require them to give notice before leaving?

Answer: Unfortunately, an employer may not simultaneously utilize the at-will employment provisions and require that an employee provide notice ahead of separation. Instead, I recommend requesting that employees provide notice as a professional courtesy so that you have time to make plans for their replacement or cover their duties, making the transition smoother for their co-workers and customers.

Beyond this, you may remind employees that their notice (or lack thereof) will be taken into consideration should they seek re-employment with the company or should a future employer seek an employment reference. If a future employer contacts you for a reference check, you may share that the individual quit with no notice, or did not provide sufficient notice ahead of their separation per the company’s request.

While you can’t require at-will employees to give notice, giving these reminders may encourage employees to provide notice ahead of their departure.

Question: Should we ban romantic relationships in the workplace?

Answer: Depending on the nature of the relationship, how you handle workplace romances is mostly up to your organization’s preference or policy.

If the employees do not report to one another and are engaged in a mutually consenting relationship, no action may be needed. Some organizations prefer to ban office dating, but I find this difficult or impossible to enforce and often not worth the time and effort. It can also create a Big Brother-like feeling, reducing trust between management and employees, and often forcing relationships to be kept secret. Some employers choose to use a “Consensual Relationship Agreement” when they know employees are dating, which establishes that both parties are part of the relationship by choice, and lays out some ground rules for how to behave.

Instead of either of these, I recommend communicating to the employees your relevant workplace policies (e.g. harassment) and your expectations regarding behavior in the workplace, and leaving it at that. In most cases, the less time management spends delving into employees’ personal lives, the better.

That said, I do recommend prohibiting managers from dating subordinate employees as a standard policy, even if layers of management separate them. There could be issues with preferential treatment and complaints of harassment if the relationship ends. These situations could expose your organization to increased risk.

If you decide to prohibit all employee dating, be careful when wording your policy. Outright “non-fraternization” policies have the potential to violate Section 7 of the National Labor Relations Act, which protects employees’ rights to engage in concerted activity. Courts have found that use of the word “fraternize” without additional explanation could potentially discourage employees from exercising their rights, so I recommend language that specifically refers to “employee dating.”

Question: We received a complaint about harassment. How should we respond?

Answer: When a company suspects that an employee has violated its harassment or discrimination policy, we always recommend conducting a complete (and well-documented) investigation into the allegations. This includes speaking with the employee who made the complaint, the accused employee, and any witnesses they name.

The investigation generally includes a series of interviews conducted by an impartial manager, company officer, or Human Resources representative. This individual should approach the investigation process without a presumption of guilt or innocence and with the commitment to treat the situation as fairly as possible. It’s also helpful to have another manager or HR Representative present during the interviews to serve as a third-party witness and to take detailed notes.

The questions asked during the interview should not “lead” a witness toward a particular response and should not be accusatory in nature. They should be unbiased and open-ended. Formulating them in advance is a best practice. It’s also important not to promise a particular outcome to employees participating in the investigation.

Once the investigation interviews are complete, we recommend internally documenting your conclusions and actions taken. Should management determine that the accused employee did in fact violate the company’s harassment or other workplace policy, we recommend taking the appropriate disciplinary measures, which depending on the severity of behavior may include termination of employment. A memo summarizing the findings should be placed in the accused employee’s file.

It is then important to inform both the accused employee and the accuser about the conclusions of the investigation and any disciplinary measures taken. The complaining employee doesn’t need to know the specific disciplinary action, just that appropriate corrective action has been taken.

If the results of the investigation do not warrant terminating the accused employee, we recommend corrective measures such as a written warning and additional training on your harassment policy. It’s also important that you notify both employees about your anti-retaliation policy. In some situations, it is advisable to separate the two employees to limit the potential for future incidents, but care should be taken so this step doesn’t have a negative impact on the employee who raised the complaint.

Companies that do not make changes substantial enough to eliminate harassment once they become aware of it face greater liability in the event of future issues. A company can help reduce risk related to harassment complaints by conducting a quick, thorough, fair and well-documented investigation followed by steps to minimize the risk of such behavior happening in the future.

In addition to the above guidelines, it’s often prudent to consult with your legal counsel upon receipt of any allegations of harassment or discrimination.

Question: Does an I-9 form need to be updated when an employee has a name change? What about other forms?

Answer: When an employee changes their legal name, you are not required to update their I-9. However, the US Citizenship and Immigration Services (USCIS) recommends maintaining correct information on I-9s. You can easily update an employee’s I-9 by entering their new legal name in Box A of Section 3, and then sign, date and print your name on the final line. You can request documentation of the name change so you can update the I-9, but employees are not required to provide documentation for this purpose.

That said, there are a few additional administrative steps for both you and the employee to complete:

  • Have the employee provide a copy of their updated Social Security card with the new name and use it to update their name in the payroll system; be sure they are identical to avoid SS mismatches.
  • Have the employee complete a new W-4. The Internal Revenue Service (IRS) requires that the name on the Social Security card match the name on W-4 and W-2 forms.
  • Update the employee’s benefits paperwork. If the change is related to marriage or other qualifying event, the employee may also want to change elections or add or remove a spouse or dependent(s). This is also the best time to make changes to their beneficiary forms as needed.
  • If driving is one of their job duties, you may want to request an updated version of their Driver’s License for your records.
  • Update company phone lists, email accounts, business cards, badges, uniforms, name plates, etc.

Depending on the circumstances, there may other considerations, but in most cases this list will cover your legal obligations as well as internal documentation.

Question: Do you recommend reducing hours as a disciplinary measure?

Answer: No, I don’t recommend reducing hours as a disciplinary measure.

Discipline is most effective when it directly addresses the performance or behavioral issue the employee is having. The aim is to improve performance or correct behavior. Reducing hours, however, doesn’t accomplish either of those objectives or deal with the problem directly. And if reducing hours isn’t a common practice in your workplace, an employee could challenge your decision as inconsistent with your policy or discriminatory.

Instead, I would recommend that you follow a progressive discipline process, possibly with a performance improvement plan. Meet with the employee to discuss the performance or behavioral problems, and document your expectations going forward.

Treating the employee consistent with your policy and documenting the steps of the process will be useful if any of your decisions are later challenged. And using discipline that directly addresses the problems at hand will give the employee an opportunity to improve and better contribute to your organization’s success. If the performance or behavior doesn’t improve, you could then look at further discipline or termination.

Question: What are the best ways to keep company data secure?

Answer: Below are some best practice tips from an HR perspective for keeping your and your company’s information safe. 

  • Protect your network with security software and keep this software up-to-date. A quality firewall is a must. As is encryption for your sensitive files.
  • Install quality antivirus and anti-malware software on all computers used for company purposes, and set up regular scans.
  • Back-up your files and databases on a regular basis. If your files are ever compromised, you don’t want to lose everything. Having a recent backup will enable you to restore your data so you can continue to operate.
  • Train employees on your internet safety and security policy and procedures, your security software, recognizing potential security threats, and creating strong passwords. Training also should include your response plan.
  • Regarding passwords, avoid dictionary words. Use multiple letters, numbers, and symbols. Phrases or long acronyms are especially hard to ascertain or break.
  • Note in your policy what security measures employees should follow when they’re out of the office and not using your firewall and secure network.
  • Be extremely cautious of unexpected emails that ask you to click a link to log into an account to update information or fix a problem. These are likely fake and designed to steal valuable information.
  • Never enter credit card numbers or other valuable information on a website that is not secure. If a website is secure, its URL will begin with HTTPS, instead of just HTTP. You should also double check that you’re on the site you intend to be on whenever entering such information.
  • Never, ever email sensitive information such as W-2s, benefit enrollment forms, completed census forms, or anything with social security or credit card numbers. Email databases and accounts are inherently insecure, and if malicious parties get access they can often see or get everything.
  • Scammers may also 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.
  • When getting rid of physical documents with sensitive information, use a secure shredding company to ensure proper disposal and that documents related to an employee’s identity are secure.
  • When getting rid of hardware or donating it, completely wipe its hard drives and storage. You don’t want someone finding an old company laptop, thumb drive, or computer and gaining access to information stored on it.

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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