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HR Snapshot
HR
Snapshot
CAN WE TELL EMPLOYEES NOT TO TALK ABOUT THEIR PAY WITH EACH OTHER?
Generally not. The National Labor Relations Act (NLRA) grants all non-supervisory employees (not just those in unions) the right to organize and engage in “concerted activity” for the purpose of mutual aid or protection. Concerted means “in concert,” meaning more than one employee is involved. Activities for mutual aid and protection could include discussions about wages, benefits, treatment from managers, safety issues, and just about anything else that two or more employees might have a stake in. As a result, the protections provided by the NLRA are broad. Here are a few examples of protected activity:
• Employees discussing their pay, whether via email, break room chat, or social media • Individual employees complaining about wages or employment conditions if they reflect general workforce discontent or are attempting to get the support of coworkers to correct a problem • Employees circulating a petition asking for better hours • Employees refusing to work in unsafe conditions • Employees joining with coworkers to talk directly to the employer, to a government agency, or to the media about problems in the workplace • While the NLRA doesn’t protect supervisory employees in this way, employers should be careful about who they classify as supervisory. Only those who have real authority will be exempt from the NLRA’s protections— an assistant manager or shift manager, for example, would in many cases not qualify as supervisory.
Note that a number of states have enacted pay equity or pay transparency laws that protect all employees’ ability to discuss their wages—even those in the C-suite. Under these laws, you wouldn’t be able to enforce wage confidentiality policies, even for supervisors.
Answer from Rachel, SHRM-SCP
Yes, as long as you’re not discriminating based on protected classes or characteristics, you can conduct reference checks for certain roles but not others. For example, you may decide that supervisory roles or positions with access to sensitive information warrant this additional step during the hiring process. As with any reference check, don’t forget to get the candidate’s permission first.
That said, some employers like to have consistent practices across the board to reduce the risk of a discrimination claim. Employees can file claims based simply on the appearance of discrimination, and employers may be held liable even if they didn’t intend to discriminate. In this case, doing (or not doing) reference checks for all roles would be the most risk-averse approach.
If you would like to check references only for certain employee groups, you should consider whether your policies and practices are disproportionately affecting employees who share a protected characteristic (race, sex, age over 40, etc.). If candidates who were rejected after a reference check were all or mostly the same gender, for instance, you’d want to be sure that the reference checks were both a business necessity and that there was no other policy you could implement that would have less of an impact on the protected group.
Answer from Daniel, SHRM-CP
In the event you’re made aware that an employee needs medical leave, but the employee is not available for direct contact due to inpatient care in a facility or incapacitation, send the applicable leave paperwork to the employee’s address on file. The employee may have someone who can get the paperwork from their home address to them or their health care provider—this is one of the most reliable methods of delivery to prove that you’ve met your compliance obligations. It’s possible you’ll hear from a case manager, family member, or emergency contact who reaches out to you on the employee’s behalf. In such a situation, you could also send the paperwork to the employee at the facility they’re in. Whatever the case, address the paperwork and any other correspondence to the employee directly, and don’t release the employee’s confidential information unless you have direct authorization from them.
Answer from Margaret, PHR, SHRM-CP
IF AN EMPLOYEE RUNS OUT OF PAID TIME OFF, CAN WE ALLOW THEM TO TAKE AN UNPAID LEAVE?
In most cases, yes. In general, you can offer the option of unpaid leave when an employee has used all of their paid leave time. A few things to keep in mind: • In some situations, such as under the Family and Medical Leave Act, the employee may be legally entitled to unpaid leave. In those cases, you would need to approve the unpaid leave (at least) to the extent required by law. • For employees enrolled in your company benefit offerings, the length of the unpaid leave may impact their ability to continue to participate in benefits if the time away isn’t covered by FMLA or a similar law. Check your internal policies and benefit plan documents for details on eligibility. • Be consistent in granting time off requests. If—in the absence of legal requirements—you have historically granted employees unpaid time off for personal reasons or family emergencies, you should continue to do so unless you want to make a permanent change in policy. Inconsistency can lead to discrimination claims.
It also wouldn’t hurt to double-check that the employee isn’t owed any paid leave beyond what they’ve already taken. Review state and local leave laws where the employee works for any requirements.
Answer from Kim, SPHR, AAM, CPIW
CAN WE REQUIRE EMPLOYEES TO DO EXTRA WORK OUTSIDE THEIR SCHEDULED HOURS?
Yes, but you have to pay for it. As an employer, you have control over schedules and can modify them as needed. That may mean scheduling additional work time for employees. A few things to note: For nonexempt employees, any extra work time must be compensated at or above minimum wage, and any overtime worked must be paid at the required premium. Properly classified exempt employees don’t need to be paid extra for extra work.
Employees who haven’t previously been scheduled outside their normal work hours may have conflicts. Giving them a heads up well in advance of a change to their schedule may increase the chance that they can take on the extra work.
Some employees may have commitments they can’t change or may otherwise be unable to work the extra hours. If you plan to make the extra work a requirement for certain positions, you may experience unwelcome turnover. Over time, additional hours can lead to burnout. Make sure managers are regularly communicating with their team members about workloads and morale.
Answer from Sergio, SHRM-CP
