FOUR BAKERS’ DOZEN
EMPLOYMENT LAW FAQ
1 About Federal Discrimination Laws
1.1 Are we subject to the federal law barring race and sex discrimination?
1.2 What does this federal discrimination law bar?
1.3 Are we subject to the federal law barring age discrimination?
1.4 To what age person does the federal age discrimination act apply?
1.5 Are we subject to the federal law barring discrimination against those with disabilities?
1.6 Are we subject to the Family and Medical Leave Act ("FMLA")?
1.7 Are we required to verify whether an employee is a citizen?
1.8 Are we barred from gender-based wage differentials?
1.9 Are we required to provide an employee pension or benefit plan?
1.10. If we chose to provide an employee pension or benefit plan, are we required to make extended health coverage available?
2 About Employee Handbooks
2.1 Should we have a written personnel manual?
2.2 Should I give a copy of the written policy manual to my employees?
2.3 Should the employee sign for the employee manual?
2.4 What should the acknowledgement of receipt in our employee policy manual say?
2.5 Should we, as the employer or its representative, also sign the sheet signed by the employee or have our company’s or its representative’s signature anywhere else in the employee manual?
2.6 Are there any disclaimers that we should consider having in our employee manual?
2.7 What policies should we consider having in our manual?
3 About Applications for Employment
3.1 Should we have an applicant fill out a written job application?
3.2 What should we cover on our employee applications?
3.3 Should we have the applicant swear to or attest to his or her application?
3.4 Should we retain an active pool of job applications?
3.5 Should we have a closed file with past job applications?
3.6 May we ask an employee about his or her arrests or convictions?
4 About Hiring
4.1 How do we go about doing a criminal background check for hiring purposes?
4.2 May we require an employee to take a polygraph test as a condition of employment?
4.3 May we require that an applicant submit to a medical examination?
4.4 May we require the applicant to take a drug screen?
4.5 May we require the applicant to take a psychological test?
5 About Personnel Files
5.1 Should we keep medical information and personnel information in the same file?
5.2 Should one person be in charge of our personnel information?
5.3 Must we give our employee a copy of his or her personnel file?
5.4 Where should we keep personnel files?
5.5 Can we put negative documentation in an employee's personnel file without telling the employee or giving the employee a copy?
5.6 What documents typically go in a personnel file?
6 About Medical and Other Information
6.1 What is medical information?
6.2 Who may have access to an employee’s medical file?
6.3 After an employee is terminated do we need to keep the personnel file and the medical file separate?
6.4 Are there other records which should not be kept in the personnel file?
6.5 What is the most important thing to remember about appraisals?
7 About Employment in General
7.1 May we require an employee to work weekends?
7.2 May we require our employees to work 7 consecutive days?
7.3 May we prohibit employees, including those with concealed gun permits, from bringing a gun to work?
7.4 May we monitor our employees’ e-mail or telephone calls?
7.5 Must we provide our employees rest periods or lunch breaks during the workday?
7.6 Are we covered by the Fair Labor Standards Act ("FLSA")?
7.7 If we are covered by the FLSA, what does that mean?
7.8 If we hire independent contractors, are they covered by the FLSA?
7.9 How do we determine if our employees are exempt or non-exempt (and entitled to overtime) under the FLSA?
7.10 If a non-exempt employee works overtime without our permission, must we pay for it?
8 About Record Keeping
8.1 How long should we keep various kinds of records?
8.2 How long should records that deal with the hiring process and people who are not hired be kept?
8.3 If a lawsuit is filed or a complaint of discrimination is received, should that have an affect on our record keeping practices?
Typical Questions and Answers
I. About Federal Discrimination Laws
1. Are we subject to the federal law barring race and sex discrimination?
If you have 15 or more employees, yes, Title VII of the Civil Rights Act applies.
2. What does this federal discrimination law bar?
Title VII bars discrimination on the basis of race, color, religion, sex, pregnancy, or national origin.
3. Are we subject to the federal law barring age discrimination?
If you have 20 or more employees, the Age Discrimination in Employment Act applies.
4. To what age person does the federal age discrimination act apply?
Persons who are 40 or older.
5. Are we subject to the federal law barring discrimination against those with disabilities?
If you have 15 or more employees, yes.
6. Are we subject to the Family and Medical Leave Act ("FMLA")?
If you have 50 or more employees, yes.
7. Are we required to verify whether an employee is a citizen?
If you have at least 3 employees, employment verification procedures are imposed on you.
8. Are we barred from gender-based wage differentials?
If you have at least 2 employees, yes.
9. Are we required to provide an employee pension or benefit plan?
10. If we chose to provide an employee pension or benefit plan, are we required to make extended health coverage available?
If you have 20 or more employees and provide health coverage, you need to make extended health coverage available to employees terminating their employment for any reason except "gross misconduct.
2 About Employee Handbooks
1. Should we have a written personnel manual?
Generally speaking, I recommend that regardless of the number of employees you have, you should consider adopting some form of personnel manual, provided that you will follow your written policies. If you will not follow your written policies, it may be better to have no written policies.
2. Should I give a copy of the written policy manual to my employees?
3. Should the employee sign for the employee manual?
Yes. I recommend that you should have an acknowledgement of receipt page in the back of the manual which, after being signed and dated by the employee, can be removed and stored by you in a safe, secure location.
4. What should the acknowledgement of receipt in our employee policy manual say?
It should at least state that it is the employee's responsibility to review and become familiar with the manual, that the manual does not constitute a contract of employment, and that all employees are employed at-will.
5. Should we, as the employer or its representative, also sign the sheet signed by the employee or have our company’s or its representative’s signature anywhere else in the employee manual?
I recommend that neither you nor your representative sign or have his or her signature anywhere in the manual or on the acknowledgement of receipt page.
6. Are there any disclaimers that we should consider having in our employee manual?
Yes. Generally speaking, in addition to the acknowledgement receipt page, I recommend: (1) a merger clause, (2) a disclaimer of reliance clause, (3) your right to amend, change, or cancel the polices or procedures contained in the manual at any time, and (4) language spelling out that the manual is not a contract, does not confer any rights in the employee, and that the employment relationship is an at-will employment.
7. What policies should we consider having in our manual?
If you meet the appropriate number of employee requirements identified in the answers above, I recommend you consider having: (1) an equal employment and nondiscrimination policy, (2) a sexual and other unlawful harassment policy [you may also want to have an acknowledgement of understanding and receipt signature page for this policy], (3) a healthcare continuation policy, (4) a Family and Medical Leave Act Policy, (5) a work place safety and prevention of violence policy, (6) a policy permitting monitoring of work place telephone calls, e-mails, and computer use, (7) a no-solicitation and no-distribution policy, (8) an introductory period for new employees policy, (9) a progressive discipline policy, and (10) a union avoidance policy.
3 About Applications for Employment
1. Should we have an applicant fill out a written job application?
Yes. All applicants should fill out a job application.
2. What should we cover on our employee applications?
I recommend that you consider asking for the following: (1) past employment, (2) reasons for leaving prior employments, (3) name of prior immediate supervisors, (4) education, (5) non-expunged convictions, (6) releases for getting verification of convictions, education, prior employment, and references, (7) fair credit reporting act notification and release, and (8) have at-will employment language just above where the applicant must sign.
3. Should we have the applicant swear to or attest to his or her application?
4. Should we retain an active pool of job applications?
No. Once you hire someone, notify those who did not get the job and close the file.
5. Should we have a closed file with past job applications?
6. May we ask an employee about his or her arrests or convictions?
Yes, except for expunged arrests or convictions. But to be extra cautious, I’d limit my questions to non-expunged convictions. The Equal Employment Opportunity Commission ("EEOC") has taken the position that employers may engage in disparate impact discrimination if they ask about arrest records because certain minority groups have been subjected to such arrests on a disproportionate basis.
4 About Hiring
1. How do we go about doing a criminal background check for hiring purposes?
Criminal background information is maintained and disclosed by the Virginia State Police Central Criminal Record Exchange. For the information to be released, the person who is the subject of the release must sign a form requesting release and have it notarized. The release form permits the individual to authorize the disclosure of this information to his potential employer. See web pages www.virginiatrooper.org or www.vsp.st.va.us and form SP-167.
2. May we require an employee to take a polygraph test as a condition of employment?
Generally, no. The federal Employee Polygraph Protection Act (29 U.S.C. §§ 2001-2009) imposes severe restrictions on the use of polygraph tests with employees. The Polygraph Act bars most employers from requiring, requesting, or suggesting that an employee or job applicant submit to a polygraph test, and prohibits most employers from discharging, disciplining, or discriminating against any employee or applicant: (1) for refusing to take a polygraph test; (2) based on the results of such a test; or (3) for taking any actions to preserve employee rights under the Act. However, there are some exceptions which include permitting such tests on current employees who are reasonably suspected of involvement in a workplace incident that resulted in economic loss or injury to the employer's business.
3. May we require that an applicant submit to a medical examination?
Generally, no. The Americans with Disabilities Act ("ADA") prohibits pre-employment medical examinations until a conditional offer of employment has been extended. Thereafter, the results of the examination may not be used to deny employment unless the employer can demonstrate that the medical impairment which prompts the decision not to move forward with the offer is directly related to the job for which the person was to be employed and that the decision is supported by business necessity.
4. May we require the applicant to take a drug screen?
Even though drug screens tests are not medical examinations under the ADA and even though they are required for some occupations, I generally do not recommend such tests, except where they are required, to help lessen the likelihood of liability if the drug laboratory should make an error.
5. May we require the applicant to take a psychological test?
You need to be careful because some types of psychological tests can be considered to be medical examinations. However, psychological tests which simply concern an individual’s skills or tastes and do not ask any disability related inquiries are permissible. Moreover, even acceptable paper and pencil tests are generally required to meet the EEOC’s Uniform Guidelines on Employee Selection Procedures. These guidelines require that the test be validated where there is an adverse impact upon a protected group.
5 About Personnel Files
1. Should we keep medical information and personnel information in the same file?
2. Should one person be in charge of our personnel information?
Generally speaking, I recommend that one person be in charge of personnel policies and practices because this helps eliminate the discrepancies that can exist when each manager of a department has control over the personnel practices concerning the particular employees that work for him or her.
3. Must we give our employee a copy of his or her personnel file?
No. Unlike some states, Virginia does not have a statute requiring that employers permit employees access to their personnel file information. However, I recommend that an employee be permitted access to the file under supervision or a copy of the file since this prevents disgruntled employees from later claiming that they never saw negative performance documents that have been placed in the file.
4. Where should we keep personnel files?
You should keep personnel files in a secure, limited access location. Access to personnel files should be restricted to those with a need to know. It is wise to develop a policy on file access and make sure staff and managers are familiar with and abide by it.
5. Can we put negative documentation in an employee's personnel file without telling the employee or giving the employee a copy?
Yes. However, I recommend providing an employee with a copy of any negative documentation and documenting that provision because it prevents the employee from accusing the employer of having made up such documentation.
6. What documents typically go in a personnel file?
A personnel file generally can include the following kinds of documents:
Application, resume, education, offer, job description, and records relating to: hiring, promotion, demotion, transfer, layoff, compensation, on-the-job education and training, letters of recognition, disciplinary notices, performance evaluations, test scores, exit interviews, and termination records.
6 About Medical and Other Information
1. What is medical information?
Medical information includes physical exams, medical leave documents, workers’ compensation claim documents, and drug and alcohol testing information.
2. Who may have access to an employee’s medical file?
Both the ADA and FMLA strictly limit access to employee medical information. Under the ADA, only human resources staff, supervisors, and managers as needed for work restrictions and reasonable accommodation, and first aid and safety personnel, may have access to medical records. Such documents, therefore, must be kept in a separate, confidential file, not in the personnel file.
3. After an employee is terminated do we need to keep the personnel file and the medical file separate?
No. After an employee has been terminated, the medical file can be consolidated with the personnel file and kept for at least six years, or whatever is deemed to be the appropriate period for the organization. OSHA-required medical records, however, must be flagged for retention for 30 years beyond termination of employment.
4. Are there other records which should not be kept in the personnel file?
Yes. It is also better to keep other documents separate from the personnel file. These are records that contain information that is protected in some way and should not impact every day decision-making regarding an employee. These records include equal employment opportunity data such as race, gender and age, discrimination or harassment claims and documents that relate to such claims and any investigation thereof, and I-9 forms. For I-9s, the best practice is to file them together for all employees on a chronological basis. This facilitates production in the event of a government audit and insures the auditor sees only documents relevant to the audit.
5. What is the most important thing to remember about appraisals?
The most important and most difficult thing is for your managers to provide truly honest appraisals of employees’ performances. A performance appraisal is no time for sugar-coating or being kindhearted. Your employees have a right to know their deficiencies so that they may correct them. Your employees also need to know the real reason why they have not been promoted, why they were not selected for that internal position, or why their merit increase is smaller this year. If your managers fail to reveal bad news, they put themselves and you in a risky position. For when an employee is passed over, he or she will think any deficiency not previously disclosed is suspect. As difficult as it might be, your managers need to be honest with your employees -- both face-to-face and on paper -- and make clear to your employees the areas of performance needing improvement
7 About Employment in General
1. May we require an employee to work weekends?
Generally speaking, yes, you may, unless the non-managerial employee asserts that his or her religious beliefs require that they maintain the Sabbath on Sunday or Saturday.
2. May we require our employees to work 7 consecutive days?
Generally speaking, no, unless there is an emergency.
3. May we prohibit employees, including those with concealed gun permits, from bringing a gun to work?
Generally speaking, yes.
4. May we monitor our employees’ e-mail or telephone calls?
Generally speaking, yes, if you inform the employees in advance that the telephones, the computers, and computer systems are your property and are subject to monitoring. For example, you may want to include in your employee manual a policy which advises the employees that they have no expectation of privacy in these communications and that you may monitor their communications when using such systems. Once again, it would be good to have your employees sign a consent and acknowledgement form.
5. Must we provide our employees rest periods or lunch breaks during the workday?
Generally speaking, persons over 16 years of age need not be provided with a rest period or lunch break.
6. Are we covered by the Fair Labor Standards Act ("FLSA")?
You are covered if either (1) you are an enterprise employer, such as: (a) hospitals, some residential institutions, schools for mentally or physically handicapped or gifted children, preschools, elementary schools, secondary schools, institutions of higher education, or (b) have gross volume of sales made or business done of not less than $500,000.00, or (2) your employees handle instruments of interstate commerce, such as mail or telephones, or handle goods or products that have moved in interstate commerce.
7. If we are covered by the FLSA, what does that mean?
Generally speaking, you must pay at least minimum wage and pay overtime for hours in excess of 40 hours a week.
8. If we hire independent contractors, are they covered by the FLSA?
Generally speaking, no; the Fair Labor Standards Act applies only to employees. But it is the factual nature of the relationship, rather than what the parties label the relationship, that determines whether one is an "independent contractor." The most important factor in determining whether a worker is an "employee" or an "independent contractor" is the degree of control the employer exercises over the "manner and means" of the individual’s performance of the service.
9. How do we determine if our employees are exempt or non-exempt (and entitled to overtime) under the FLSA?
If you’re covered by the FLSA, you must classify each of your employees as "exempt" or "non-exempt." Unless your employee meets the criteria of one of the FSLA exemptions, the employee is non-exempt and must receive appropriate overtime. The most commonly available exemptions are the "white-collar" exemptions, which exempt executive, administrative, and professional employees. FLSA regulations provide that an employee qualifies as an executive, administrative, or professional employee under one of two methods: (1) a general ("long") test or a (2) special provision for highly paid employees ("short") test.
For example, the long test for executives requires proof of the following: (a) the employee’s primary duty (generally, 50% or more of the employee’s work time) is management; (b) the employee customarily and regularly supervises two or more employees; (c) the employee has the authority to hire, fire, promote, or effectively recommend such changes in employment status; (d) the employee customarily and regularly exercises discretionary power, (e) the employee does not perform non-managerial or non-exempt work for more than 20% of his or her workweek (or more than 40% in the case of retail and service establishments), and (f) the employee receives a salary of $155.00 or more each workweek.
The short test for executives requires only the following be proved: (a) the employee’s primary duty (generally, 50% or more of the employee’s workweek) is management; (b) the employee customarily and regularly supervises two or more employees; and (c) the employee receives a salary of $250.00 or more each workweek.
10. If a non-exempt employee works overtime without our permission, must we pay for it?
You must pay your non-exempt employees for time worked. The FLSA says that you are employing an employee and must pay for the employee’s time if you "suffer or permit" the work. This at least means that if you are aware that an employee is working "off of the books" when he or she is entitled to overtime, you must correct the situation.
8 About Record Keeping
1. How long should we keep various kinds of records?
For employee personnel file documents, other than those required to be kept under OSHA, a good retention rule of thumb is six years past termination. Five years for the statute of limitations for written contracts plus one year for the time period where a suit could have been filed, but not served.
Under the American with Disabilities Act, employers must retain payroll records reflecting each employee’s name, address, date of birth, position, pay rate and weekly compensation for at least a three-year period. The Fair Labor Standards Act requires employers to keep basic payroll information for at least three years. The Family and Medical Leave Act requires that records of the dates of leave, employee notices of leave, notices given by employers to employees, and employer policies and practices regarding leave be kept for at least three years. The Immigration Reform and Control Act provides that Employee Eligibility Verification forms ("I-9s") be kept for three years after the date of hire or one year after the date of termination, whichever is later. The Occupational Safety and Health Act ("OSHA") requires certain records be kept related to occupational injuries and illnesses. OSHA requires that records be retained for five years following the end of the year to which records relate for logs and other records of occupational injuries and illnesses, and 30 years following termination of employment for certain medical records and records of exposure to hazardous substances.
2. How long should records that deal with the hiring process and people who are not hired be kept?
You should also retain records relating to the hiring process, including those for applicants who are not hired. You should retain all advertisements for a vacancy and all applications and resumes submitted in connection with a vacancy. All interview questions, score sheets and notes should be retained, as well as documents relating to background investigations. After a vacancy is filled, these records should be marked closed and retained for at least two years.
3. If a lawsuit is filed or a complaint of discrimination is received, should that have an affect on our record keeping practices?
Whenever a lawsuit is filed or a charge of discrimination is received, or even when an employee makes an internal complaint or an inquiry is received by a government agency, those persons in an organization who have access to documents related to that employee or others potentially impacted should be instructed to retain all such documents and records. Any loss or destruction of documents after you know or should know about a claim may be in violation of legal rules.
This FAQ is not provided for use or reliance by you or any third parties and does not purport to be exhaustive or to render legal advice for your particular situation or any other specific case. It is meant merely to assist you in sharpening the questions you might ask of your legal advisor in your particular case. Please give me a call should you have any questions. (See: Disclaimer)