HR Tip of the Week

Posted on  |  Compliance

Never Ask Employees These 8 Questions

Sometimes employers' seemingly harmless questions can be problematic because they may violate certain laws or get in the way of a productive and engaged workforce. Here are eight questions to avoid in the workplace:

#1 "Do you have family members who have COVID-19 or symptoms associated with COVID-19?"

The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. Employers are permitted to ask employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.

#2: "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.

#3: "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.

#4: "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 not every employee is receiving a raise, but you cannot ask them to avoid sharing their pay with colleagues.

#5: "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 log-in 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 do not 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.

#6: "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.

#7: "Are you pregnant?"

Even if an employee's pregnancy seems obvious to you, avoid asking the employee whether she is pregnant. Generally, an employee is under no obligation to inform her employer that she is pregnant unless she is seeking pregnancy-related leave or an accommodation.

#8: "Because of COVID-19, we are implementing alternative shifts. Do you have any religious obligations that would prevent you from working weekends?"

Employers are prohibited from discriminating against individuals on the basis of religion. This includes religious beliefs (both traditional as well as non-traditional) and religious practices, such as attending religious services, praying, or wearing religious garb. Generally, you should avoid questions that elicit information about religious beliefs and practices.

If you want to confirm an applicant is able to work the hours required for the job, state the regular days, hours, or shifts for the job and ask whether the candidate can work such a schedule. Keep in mind that you may be required to reasonably accommodate an employee's religious beliefs or practices, such as allowing an employee to voluntarily swap shifts with a co-worker so that they can attend religious services


Keep conversations with applicants and employees job-related and avoid any questions that could violate the law or reveal one's membership in a protected group.

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