1. "We really need to finish this project and money is tight. Do you mind working off the clock for a little while? We'll make it up to you later."
Under the Fair Labor Standards Act (FLSA), employers must pay non-exempt employees for all the time they spend working. Employers can't allow these employees to work without getting paid, even if they provide time off in place of payment (a practice prohibited by the FLSA in the private sector and typically referred to as "comp time").
To make sure all work time is properly accounted for, institute timekeeping controls and have a policy that expressly prohibits off-the-clock work.
2. "Can you work through your lunch?"
Many states require employers to provide rest and/or meal periods to employees. Generally, breaks lasting 20 minutes or less must be paid and if an employee works through their meal period and isn't relieved of all duties, they must be paid. Failing to provide these breaks can result in penalties.
For instance, in California, employers must generally provide non-exempt employees with a 10-minute uninterrupted rest period for every four hours worked and a 30-minute meal period for employees working more than five hours. California employers that fail to provide these breaks must pay the employee one additional hour of pay for each workday the break period isn't provided.
Check your state law to ensure compliance.
3. "Can you avoid mentioning your pay raise to co-workers?"
Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to act together to improve wages and working conditions and to discuss wages, benefits, and other terms and conditions of employment, with or without a union.
The National Labor Relations Board (NLRB), which enforces the NLRA, and many courts have found that pay confidentiality rules violate Section 7 rights. Additionally, some states and local jurisdictions expressly prohibit such policies. You can let employees know that not every employee is receiving a raise, but you cannot ask them to avoid sharing their pay with colleagues.
4. "Can I have the login information for your social media account? Can you add me as a friend on social media?"
Many states prohibit employers from asking applicants or employees for login information for their personal social media accounts, and some also prohibit employers/supervisors from asking to be added as a "friend" on social media.
Even if these requirements don’t apply to you, it's best to avoid checking an applicant or employee's social media profile since it may reveal information that cannot be used in the employment process, such as their age, religion, or political affiliation.
5. "Can you just ignore it? They're probably just kidding around."
Under various federal, state, and local laws, employers have a responsibility to take steps to prevent and correct unlawful discrimination, harassment, and other types of misconduct in the workplace. When an employee raises a concern, take the complaint seriously, investigate the situation, and if applicable, take immediate and appropriate corrective action.
6. "You would be great for this promotion, but it requires a lot of hours and travel. Are you pregnant? Who's responsible for your children's care?”
Federal law and many state laws prohibit employers from discriminating against individuals because of pregnancy. Some states also expressly prohibit employers from discriminating against applicants because of their family status.
Asking these types of questions may also have a disproportionate impact on female applicants. Laws granting employees leave for caregiving purposes may also provide protection. Avoid interview questions about an applicant's pregnancy, intentions regarding pregnancy, caregiver responsibilities, or family status.
As an alternative, you can explain expectations related to work hours, overtime and travel for the promotion, and ask the employee whether they can meet those requirements. Be consistent and ask these questions of all candidates (that is, not just female candidates).
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Note: Even if an employee's pregnancy seems obvious to you, avoid asking them whether they are pregnant, even if it is just to wish them congratulations. Generally, an employee is under no obligation to inform their employer that they are pregnant unless they are seeking pregnancy-related leave or accommodation. |
7. "You’re attending the company holiday party, right?"
Generally, attendance at company holiday parties should be voluntary, and employees shouldn’t be pressured to attend or disciplined for failing to attend. Asking employees individually if they are attending could be interpreted as pressure to attend.
8. “[To an employee who requests paid sick leave] Have you found a replacement worker? We are really busy right now and I need you to find one.”
Nearly 20 states and more than 20 local jurisdictions require employers to provide paid sick leave to employees. Many of these laws prohibit employers from requiring employees to find a replacement before they can use paid sick leave. Even in locations without such laws, requiring a sick employee to find a replacement isn’t considered a best practice because it may discourage employees from staying home when they are sick.
Conclusion
Keep conversations with employees to job-related topics and avoid any questions that could violate the law or reveal one's membership in a protected group.