Effective communication is key to a successful employer-employee relationship. Employers not only need to know what to say to employees but what not to say as well. If not carefully worded, certain statements may lead to decreased employee morale, or result in complaints related to pay, discrimination, or wrongful termination. Here are some statements to avoid in the workplace:
Avoid: "Don't worry—you will always have a job with us."
Reason: If you promise an employee permanent employment, you may jeopardize their at-will employment status. "At-will" means you can terminate an employee for any reason, as long as the reason is a lawful one. To maintain at-will status, avoid statements that could be interpreted as a promise of future employment. Business conditions may change or the employee's performance may slip, and you'll always want to maintain flexibility to make employment decisions that are in the company's best interest.
Note: There are exceptions to at-will employment created by contract, statute, the courts, or public policy. In addition, at-will employment is recognized in all states but Montana.
Avoid: "Once you get past your probationary period, you've passed the test."
Reason: Probationary or introductory periods are sometimes used to assess a new hire's performance, but can lead to confusion regarding "at-will" status. Employees sometimes mistakenly believe that once they successfully complete a probationary period, they are no longer at risk for termination based upon their performance. This misunderstanding can be created or reinforced by statements like the one above and lead to increased risk of wrongful termination claims.
Avoid: "Money is tight this year so there will be no raises, but we will make it up to you next year." "You didn't get the promotion, but you will get the next one."
Reason: While you may have good intentions, an employee may interpret these statements as a promise of continued employment or a guaranteed raise or promotion next year. Don't make promises that you may be unable to keep. The employee's performance may not warrant a promotion next year and/or your budget may not allow for raises.
Avoid: "You didn't get all your work done because there are still several errors. Punch out and finish up off the clock."
Reason: Employers must pay non-exempt employees for all hours worked. Off-the-clock work would violate this requirement. Instead, address performance issues through coaching, training, a performance improvement plan, and/or discipline.
Avoid: "Instead of overtime pay, I'll give you paid time off. For every hour of overtime, I'll give you 1.5 hours of paid time off instead of extra pay. Sound fair?"
Reason: Under federal law, non-exempt employees are entitled to overtime pay (1.5 times their regular rate of pay) whenever they work more than 40 hours in a workweek. Some states require overtime pay in additional circumstances. Employers in the private sector are prohibited from giving employees time off instead of overtime pay, a practice referred to as "comp time." With certain conditions, state and local governments may offer comp time in lieu of overtime pay.
Avoid: "Can you avoid mentioning your pay raise to co-workers?"
Reason: 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.
Avoid: "You want time off to vote? That all depends on who you're voting for."
Reason: Some states require employers to provide time off for employees to vote. Many states also have laws prohibiting employers from coercing employees to vote in a certain way.
Avoid: "You look great today."
Reason: Comments about an employee's appearance are generally inappropriate, and may be construed as harassment or bullying. Unless your remark is related to a dress code violation, conversations should focus on an employee's performance, rather than how they look.
Avoid: (Upon receiving a harassment complaint) "They are just having fun—grow a thicker skin." "I don't have time for this." "That's just the way they are."
Reason: Federal, state, and local laws prohibit harassment in the workplace, and employers have a responsibility to take steps to prevent and correct unlawful harassment. Take all harassment complaints seriously and investigate each complaint promptly. If an investigation reveals that a violation occurred, take immediate and appropriate corrective action to remedy the situation.
Avoid: (During an investigation of a harassment complaint) "I believe you."
Reason: During an investigation, you must remain neutral. Avoid any statements that could put your impartiality in question.
Avoid: (Upon receiving a discrimination complaint) "That doesn't happen here." "I know them and they are very good people."
Reason: The truth is, discrimination (and harassment) can happen anywhere. Such behavior can sometimes go undetected even among those who are supposed to know the harasser best. When an employee complains, never dismiss it. Investigate each complaint promptly, impartially, and thoroughly. If you have a conflict of interest (such as a personal relationship with one of the parties), assign an investigator who doesn't.
Avoid: "You wouldn't be interested in that promotion—it requires a lot of travel and you have a family."
Reason: Never make assumptions based on an employee's family status or caregiving responsibilities. Employment decisions must be made on job-related factors without considering an employee's caregiving responsibilities or other circumstances unrelated to the job.
Avoid: "We need to hire someone young to really understand this new technology." "We need younger employees to compete."
Reason: Excluding older workers from certain jobs because of their age could violate nondiscrimination laws. Identify the skills, knowledge, and experience needed for the job and select candidates based on those criteria, not age or another protected characteristic.
Avoid: "Are you pregnant?"
Reason: 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.
Leave of Absence:
Avoid: "All this leave you are requesting eventually will have an impact on your job."
Reason: Many federal, state, and local laws give employees the right to job-protected leave and prohibit retaliation against employees who exercise their rights to take leave. Comments like the one above could be interpreted as an attempt to interfere with the employee's right to take leave.
Avoid: "If you want to take sick leave, you need to find a replacement worker to cover your shift."
Reason: Several states and local jurisdictions require employers to provide paid sick leave to employees, and many of these laws expressly prohibit employers from requiring employees to find a replacement worker in order to receive pay for sick leave.
Avoid: "I don't think men should take parental leave. Can't your wife take leave to be with the baby?"
Reason: A number of state and local family and medical leave laws, as well as the federal Family and Medical Leave Act, give both the father and mother the right to leave to bond with a newborn or to care for a child with a serious health condition. Don't deny an employee leave because of their gender.
Avoid: "Your performance was perfect, so there's no need for a performance review." "We are too busy to conduct performance reviews this year."
Reason: All employees—from the top performer on down—should receive regular performance reviews. They are important not only for assessing past performance and giving praise when due, but also for establishing goals and communicating performance expectations for the next review period. In addition, they provide documentation to support future employment decisions.
Avoid: "Tell the client I am out of the office—I don't feel like dealing with him." "It's OK to break that rule because I am the boss and I am telling you it's OK."
Reason: Employees tend to follow the example set by their leaders. If a supervisor ignores rules or is dishonest, employees might follow suit. Establish an ethical business culture in which everyone from the chief executive officer to the entry-level employee respects and follows the rules.
When communicating with employees, choose your words carefully and make sure they don't undermine your efforts to comply with applicable laws and promote a fair and productive workplace. Additionally, train your supervisors to avoid statements that could be problematic.