Question of the Week

Who should have access to employee files?

Whoever does HR in your organization will obviously need access since they’re responsible for updating employee information and making sure everything is compliant with employment laws. Many states also grant employees the right to view their own personnel files. Other roles in your organization may need access from time to time, but that access should be limited to the following:

No one else should have access or be able to look at employee files. And even for those who do have access, they should only be reviewing the files, or parts of the file, they need to see. Having separate files for certain sensitive information (like medical documentation and I-9s) will help ensure that a manager reviewing a personnel file for performance review scores doesn’t stumble into information about an employee’s disability or other protected characteristics.

Make sure personnel files are stored securely—use locked cabinets for paper files and restrict access for electronic ones. You can view our recommendations for organizing employee files here.

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Do I need to do anything when employees come to me to vent?

It depends on what they’re venting about. If they’re complaining about conduct that might be illegal, such as harassment or threats of violence, you’ll need to investigate. This is true even if the employee asks you not to take action.

If the situation doesn’t pertain to potentially unlawful conduct, it can be helpful to ask the employee what they’re looking for. For example, ask, “Do you just need me to listen, or do you want me to do something?”.

Let the employee share their complaints and offer suggestions as to how they might be able to work it out themselves or with the assistance of their manager. If their concerns involve their manager, you may need to act as a mediator to help facilitate a conversation.

Remember, you aren’t there to solve all the employee’s problems. But by lending an empathetic ear, you can help them learn to solve issues on their own as well as build trust, so they know they can safely bring up matters that do require your direct involvement.

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What does “quid pro quo” mean in the context of workplace harassment?

Quid pro quo—a Latin phrase meaning “this for that”—refers to a specific type of unlawful sexual harassment. Quid pro quo harassment can occur in two ways:

Sexual harassment isn’t limited to quid pro quo scenarios. It can also be (and is more commonly) unlawful when it creates a hostile work environment. If you are alerted to the possibility that harassment has occurred in your workplace, you should investigate immediately. You can learn more about preventing a hostile work environment and conducting an investigation on the platform.

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

Generally, yes, you can let an employee go that same day unless there is a contract or agreement to the contrary. While you aren’t required to retain an employee or provide compensation during a resignation notice period if the employee doesn’t work, there are some things you should consider before telling the employee you don’t want them to work through their notice period.

First, if you ask the employee to leave before the end of the notice period and don’t pay them for that time, the applicable state’s unemployment insurance department may consider this an involuntary termination. If you’re concerned about that, you can pay the employee through the full notice period but tell them they don’t need to come in to work.

Second, ending their employment early could discourage others from giving notice. Other employees may not see the point of providing notice since it appears you’re not using that time for skills transfer or project completion. That could become an issue if an employee quitting without notice leaves you unable to deliver on an important project or you’re unexpectedly left without anyone who can do certain necessary tasks.

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Are we permitted to ask applicants about their immigration status?

No, you shouldn’t ask applicants about their immigration status—for example, whether they are a citizen, naturalized citizen, lawful permanent resident, or refugee. Asking about applicants’ immigration status (or any protected class) could lead to discrimination claims in the following ways:

You are allowed to ask questions about an applicant’s lawful ability to work in the United States or their potential need for sponsorship. For example, you could ask, “Are you legally authorized to work in the United States?” or “Do you now or will you in the future require employer sponsorship?”.

If you ask either of these questions, do so for all candidates and not just for those you suspect might need visa sponsorship or who may not be obviously eligible to work in the United States. You can add these questions to your job application or screening questions to ensure consistency.

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What is at-will employment?

At-will employment means that the employer or the employee can end the employment relationship at any time, with or without notice, and with or without cause. It does not, however, allow an employer to terminate someone for an illegal reason, like their inclusion in a protected class or their exercise of a legal right.

Every state (except Montana) assumes the employment relationship is at-will unless there is a legal agreement in place that says otherwise. Assuming you want to maintain the at-will relationship with employees, we recommend including clear language about this in your employee handbook.

Keep in mind that even with an at-will relationship, terminations carry risk. A terminated employee can always claim that they were terminated for an illegal reason, at which point you’ll want to be able to show otherwise. To reduce that risk, you should have and document a lawful, business-related reason for each termination. This reason should also generally be shared with the departing employee, so they understand the legitimate reasons they were let go and are less likely to come up with their own theory, which may include discriminatory motive.

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What should we include in an attendance policy?

Generally, an attendance policy should outline your attendance expectations, the procedures your employees should follow if they’re going to be late or absent, and the consequences when your policy isn’t followed.

Your expectations should include how you define being on time and what you would consider being tardy or absent. This section of your policy might say something like, “You are expected to arrive at the workplace on time and ready to perform your job.”

The procedures section of the policy tells employees what they should do in the event of a planned or unplanned absence, when they need to arrive late or leave early, or if an emergency arises and they aren’t able to notify you ahead of time. It could include instructions on whom to notify (e.g., one’s manager) and when to notify them (e.g., two hours before an unplanned absence).

The consequences section explains what happens when employees don’t follow your policy. “Failure to comply with this policy may result in disciplinary action, up to and including termination” is a typical line. You should also note how many days of unexcused absence, or no-call no-show, will constitute voluntary resignation on the part of the employee.

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What is progressive discipline?

Progressive discipline is a process for addressing performance or behavioral issues with corrective action. Instead of immediately demoting, suspending, or terminating an employee who messes up, you remind them of your policies, give them a chance to do better, and explain the consequences if they don’t. The process usually begins with a relatively informal conversation to address the issue (which would generally count as the “oral warning”) before moving on to a series of written warnings (e.g., first, second, final) followed by termination if the warnings don’t correct the issue.

Following the same steps consistently for similar situations can help reduce the likelihood of discrimination. However, note that progressive discipline isn’t appropriate for every infraction. Violations like theft, egregious harassment, or assault, for instance, might warrant immediate termination even on the first offense.

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A manager asked if they could call and not just email the candidates who were interviewed but not selected. Is this a good idea?

There’s nothing wrong with calling candidates to let them know they weren’t selected, but whether it’s a good idea really depends on what your candidates expect and what you’re seeking to accomplish.

Candidates expect an update after the completion of the interview process. You can set expectations by outlining your process when they first apply and by letting candidates know at each step how you intend to follow up with them and how quickly.

You could also ask the candidates for their preferred method of communication. A checkbox on the application would do the trick. Just make sure whoever is following up with your candidates uses the preferred method.

If you do decide to make a call, we recommend saying more than “We went with a different candidate” or “We found a better fit.” Take the opportunity to provide the candidate with objective feedback. You should also be prepared to answer questions on the spot. They might want additional details as to why they weren’t selected or ask advice about what they could have done better. Being ready to offer them useful feedback can end the candidate’s experience on a positive note, even though they weren’t selected for the job.

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What is a total compensation statement?

A total compensation statement is a document that provides employees with a view of their compensation beyond just wages or salary. It’s meant to give employees a complete picture of what the company has invested in them. It details not only base pay but also bonuses, paid time off, health and wellness benefits, retirement program matching, and any other perks that are funded by the employer.

You can find an example of a total compensation statement on the platform. If you decide to provide a total compensation statement to your employees, we recommend explaining the purpose of the document to them and preparing managers to answer questions that may come up.

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What is a “plan document” with respect to insurance plans offered by private employers?

A plan document is the official governing document of employee benefit plans, such as health, welfare, and retirement plans. The Employee Retirement Income Security Act (ERISA) requires that almost all private employers that sponsor benefit plans have corresponding plan documents.

Your plan document should include specific information about the plan, such as eligibility, funding and contribution requirements, details about each benefit, and ERISA disclosures. You should have separate ERISA plan documents for retirement plans and the health and welfare plans because the structure, funding, and legal requirements for these plan types differ.

ERISA also requires a summarization of the plan document, called the Summary Plan Description (SPD), to be provided to employees within 90 days of becoming covered under the plan and when the plan document is changed. The SPD should be written in plain language so it’s easy for employees to understand the plan’s features and benefits.

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I read that FMLA entitles eligible employees to 12 weeks of unpaid, job-protected leave. What does “job-protected” mean?

When a leave of absence is “job-protected,” you can’t terminate or demote the employee, or take away any benefit they earned or were entitled to, simply because they took that time off. Upon their return, you generally need to restore them to their original job or an equivalent position with the same pay, benefits, and other terms and conditions of employment. It enables employees to take time off without having to worry about losing their job or facing other adverse employment action.

Job-protected leave does not, however, provide safeguards against layoffs or job changes that would have occurred even if the employee hadn’t taken leave. It also doesn’t prohibit you from disciplining or terminating an employee after their leave. That said, if you need to take adverse action while they’re on leave or shortly afterwards, it’s especially important to document the legitimate business reasons for the action in case the employee claims your motives are retaliatory.

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What does my employee mean when they say they’re going to “file a claim” for discrimination with the EEOC?

In the context, filing a claim of discrimination means lodging a formal complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal agency that enforces Title VII of the Civil Rights Act, where most of our federal employment discrimination prohibitions come from. A claim can be filed by an employee, former employees, or job applicant. The claim will assert that they were discriminated against by the employer because of their race, color, religion, sex, pregnancy, gender identity, sexual orientation, national origin, age, disability, genetic information, or another protected characteristic.

When the EEOC receives a claim of discrimination, it sends a notice of the charge to the employer. The notice will either ask the parties to participate in a mediation program to resolve the claim or instruct the employer to provide a written answer to the charge before it investigates. Although discrimination claims usually need to be filed with the EEOC before a person can sue, filers don’t have to wait for the EEOC to investigate and can instead ask for a “right to sue” letter, which will usually end the EEOC’s investigation. A lawsuit may follow, depending on the outcome and circumstances.

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Can we ask applicants to share their pronouns on our job application?

In general, yes. There are some things to consider.

First, the question should be optional and clearly stated as such on the application.

Second, if you ask for pronouns on the application, screeners and interviewers should use them. Your workplace culture won’t come across as authentic or inclusive if the applicant’s stated pronouns are disregarded.

Third, ensure that those making hiring recommendations or decisions understand that a candidate’s choice to identify or not identify their pronouns, as well as the pronouns they choose, should not figure into the hiring decision. Collecting this information could lead to a discrimination claim if an applicant believed they were excluded because of their gender identity.

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What is a health flexible spending account?

A health flexible spending account (HFSA) lets employees set aside pre-tax money from their paycheck during the year, and they can use this money to pay for eligible healthcare expenses for themselves, their spouse, or their dependents. The funds in these accounts are typically “use it or lose it,” with some exceptions for carryover or grace period options, based on the employer’s plan design.

Employees can use their HFSA funds for many healthcare-related costs allowed by the IRS, such as insurance plan deductibles and copays, prescriptions and over-the-counter drugs and medications, dental and vision care, and chiropractic services. Payments for these services can be made directly to the healthcare provider or retailer using a debit card linked to the account or by filing for reimbursement with the HFSA provider.

Employees like having HFSAs as these accounts allow them to set aside pre-tax money for some of those regular costs, such as new glasses, or for a planned medical procedure, while also providing upfront access to funds to help them manage unexpected medical expenses more effectively.

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We’ve decided to bring employees back into the office a few days each week and change our remote work policies. Some employees have been grumbling about this change. What should we do?

Any time you make a change like this, you can expect a certain amount of employee complaints. People aren’t inherently great with change, and the benefits of remote work can be hard to part with. Given that, instead of trying to shut down complaints (which could potentially run afoul of employees’ rights under the National Labor Relations Act), we recommend a few things you can do to help bring employees onboard with the idea.

One way to do this would be to hold a virtual meeting where you share your reasons for returning to the office and invite employees to share—during the meeting or afterwards—what support they may need to make the return as smooth as possible.

During this meeting, be transparent about why you’re adopting a hybrid policy, noting both the benefits to the organization and to employees. Let them know that you understand that this change will cause some disruption to their lives and that you want to support them during the transition.

To help employees feel better about returning to the office, you might also consider offering perks such as a stipend for parking and commuting costs, a well-stocked fridge and snack drawer, or a more flexible in-office dress code.

While you will never be able to stop all the complaining, providing transparent communication and allowing employees to be heard is essential to gaining their support for any policy changes.

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Should we include a pay range in our job postings even though we aren’t required to by law?

We generally recommend including pay ranges in job postings even if it isn’t legally required. First, since the practice has become more common, more job seekers expect it, and many won’t apply for jobs that don’t include a pay range. By not including this information, you risk missing out on top talent. Second, sharing pay information upfront has the potential to save you time and money. You’re much less likely to have a candidate you’ve already spent a lot of time with reject your offer because the pay didn’t meet their expectations. You’re also less likely to get negotiated into a pay range that you can’t really afford or that would create pay equity issues in the organization.

That said, sharing pay information in job postings will put a spotlight on your overall pay practices and any pay disparities. Your current employees could start asking questions about their own pay, especially if their pay falls below the range for comparable work. You and your managers should prepare to have these conversations and make necessary adjustments. You can learn more about pay transparency by visiting our chart that outlines the states and localities that require pay ranges to be posted.

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What’s the difference between exempt and nonexempt and how do we know which classification to use?

Exempt and nonexempt are classifications under the Fair Labor Standards Act (FLSA), a federal law requiring that most employees receive at least minimum wage for each hour worked and overtime pay for hours worked over 40 in a workweek. Employees who are entitled to both minimum wage and overtime are called nonexempt, while those who are not entitled to both are called exempt.

Any position can be nonexempt. However, if you want to classify a position as exempt, it needs to qualify for one of the exemptions listed in the FLSA.

The most common exemptions are those for executive, administrative, and professional employees. These are often known as the EAP or white collar exemptions. But to qualify, each employee must pass a three-part test:

If an employee meets all the necessary criteria, they can be properly classified as exempt. If they don’t, they’ll need to be classified as nonexempt and paid at least minimum wage and overtime when applicable.

Note that teachers and practicing doctors and lawyers don’t have to pass the salary level and salary basis tests to be classified as exempt. And exempt computer employees (a subset of the professional category) can be paid on an hourly basis, so long as they’re paid the applicable hourly minimum, as determined by DOL rules.

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We’re considering demoting an employee. What questions should we ask ourselves to ensure we are making the right decision?

Demotions, like other employment decisions, need to be handled carefully. You should ask yourself the following questions to ensure you are handling the situation fairly and legally:

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We’ve just hired a remote employee who will be working in a different state. Do we need to make a new employee handbook?

You probably don’t need a whole new employee handbook, but you’ll certainly want to review the one you currently have in light of the laws in the state where the remote employee is located.

As you may know, you need to follow the laws in the state where the employee will be physically performing their work. States have a wide range of requirements regarding wages, breaks, leaves, and other employment matters, so it’s essential to learn about the requirements in the states where your remote employee will be working.

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How can we help our employees feel more comfortable providing feedback about their managers?

Employees are often uncomfortable providing feedback about their managers because they fear workplace tension or retaliation, they aren’t sure what to say, or they don’t believe anything will change. The following practices can help address these concerns:

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Do we need to pay our remote employees for a full day if they lose internet access for a few hours?

It depends on their status under the Fair Labor Standard Act (FLSA). Your exempt employees need to be paid their full salary for the day if they did any work before or after the outage (or both).Your nonexempt employees only need to be paid for time worked. So, if your employees didn’t do any other work while their internet was down, you don’t have to pay them for those hours. Note that any time they spent troubleshooting the connection, either by themselves or with your IT department, would likely qualify as work and should be paid.

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Does taking FMLA intermittently affect an employee’s full-time status or eligibility for health benefits?

No. The Family and Medical Leave Act (FMLA) is clear on this point. You must maintain the employee’s coverage under any group health plan with the same conditions as if the employee had not taken leave and been continuously working full time during the entire leave period. The specific coverage should also be maintained, both in terms of who is covered under the plan (e.g., employee, employee and spouse, employee and family) and what the coverage includes (e.g., medical, dental, vision).

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We have an exempt employee who is going to be working part-time hours indefinitely. Do we need to switch them to hourly nonexempt or can we simply reduce their salary while keeping them exempt?

You don’t necessarily need to change their classification, but the minimum salary for exempt employees—which will be determined by federal or state law—can’t be prorated based on the number of hours worked. This means you can only keep the employee as exempt if, after the salary reduction, they still make at least the applicable minimum salary. If their new pay is below the minimum for exemption, you’ll need to reclassify them as nonexempt and pay them based on the number of hours they work.

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