Posted on: January 11, 2023                                                                                                   

Employers must comply with increasingly complex federal, state and local laws. At times, myths surrounding these laws can make it even harder to comply. Below, we debunk several HR myths and supply you with the facts you should know about important employment laws.

Myth #1: "At-will" employment means you can fire an employee for any reason.

Fact: While "at-will" employment generally means you can terminate an employee for any reason, the reason must be a lawful one. For example, if you terminate an employee for engaging in protected activity or because of a protected characteristic, you may be subject to a claim or lawsuit, regardless of the employee's at-will status. Employees are protected from discrimination based on protected characteristics, such as age, race, religion, disability, gender, national origin and military status. And various federal, state and local laws prohibit employers from retaliating against individuals for exercising their rights under the law. There are also other exceptions to at-will employment created by contract, statute, the courts or public policy. And, it’s important to note that at-will employment is recognized in all states but Montana.

Myth #2: Any worker can be classified as an independent contractor.

Fact: This may seem attractive, because when a worker qualifies as an independent contractor the employer is generally relieved of certain payroll taxes, minimum wage and overtime requirements, and benefits obligations for that individual. However, only a small fraction of workers qualify for independent contractor status and the penalties for misclassification can be significant. The presumption is that a worker is an employee, unless they meet certain criteria established by federal and state tests. Some states have adopted tests that are even more difficult to satisfy. Before you classify any worker as an independent contractor, make sure you have met all applicable tests. If you are unsure, take the cautious approach and classify your worker as an employee.

Myth #3: If an employee works overtime without authorization, the employer doesn’t have to pay them for it.

Fact: Under the federal Fair Labor Standards Act (FLSA), non-exempt employees must receive 1.5 times their regular rate of pay for all hours worked over 40 in a workweek (some states require overtime in additional circumstances and at a different rate). If a non-exempt employee has worked overtime, they must be paid an overtime premium, regardless of whether the overtime was pre-authorized. A policy that no overtime work is permitted unless authorized in advance doesn't relieve the employer of this requirement. Employers may subject the employee to disciplinary measures for working unauthorized overtime, but in no case may the employer withhold overtime pay.

Myth #4: An employee's hours may be averaged over two workweeks when determining whether the employee is due overtime.

Fact: Under the Fair Labor Standards Act (FLSA), non-exempt employees must be paid overtime for all hours worked over 40 in a workweek. Check your state law for any additional overtime requirements. The FLSA does not allow employers to average an employee's work hours over two or more weeks, regardless of the employer's pay schedule. Therefore, if an employee works 50 hours in one workweek, the employee is entitled to overtime for that workweek, even if the employee works 30 or fewer hours in the following or preceding workweek.

Myth #5: Employers can prohibit employees from discussing their salaries with co-workers.

Fact: Section 7 of the National Labor Relations Act (NLRA) gives employees the right to act together, with or without a union, to improve wages and working conditions. Most employers are covered by the NLRA, regardless of whether their employees are unionized. The National Labor Relations Board (NLRB), which enforces the NLRA, and many courts have found that policies and rules that prohibit employees from discussing their pay (or other terms and conditions of employment) violate the NLRA. Additionally, 20 states and the District of Columbia have enacted laws that expressly prohibit employers from banning employees from discussing their wages. Some local jurisdictions have also enacted similar laws. Check your state and local laws for details.

Myth #6: No employer is required to disclose pay ranges to applicants.

Fact: A growing number of states and local jurisdictions require private sector employers to disclose the pay range for a position to an applicant or employee. The table below lists some examples.

Myth #7: Employees who quit are never entitled to unemployment benefits.

Fact: While most employees who quit aren't eligible for unemployment benefits, the fact that an employee quits doesn't always disqualify them. To receive benefits, employees who resign must generally show that they quit for "good cause" (typically attributable to the employer). While "good cause" varies by state, employees who quit as a result of retaliation, to care for a sick family member, or due to a significant reduction in hours/pay may be eligible for unemployment benefits. Eligibility rules vary, so check your state law for details.

Myth #8: Employees must specifically ask for a “reasonable accommodation” for a disability to be entitled to one.

Fact: A reasonable accommodation is a change in the work environment or in the way work is customarily done that enables an individual with a disability to perform the essential functions of the job. The employee doesn’t need to use the words “reasonable accommodation” to notify you that they need an adjustment or change at work due to a health or medical condition or disability. For example, “I’m having trouble getting to work on time because of medical treatments I’m undergoing,” could be considered a request for a reasonable accommodation. If the initial communication is unclear, ask the individual if they are requesting a reasonable accommodation. Once you’re put on notice that an employee may need a reasonable accommodation, work with them to identify an effective accommodation.

Myth #9: Only large employers are required to provide sexual harassment prevention training.

Fact: In certain jurisdictions, training requirements apply to all employers. In others, the requirements apply to employers with five, 15 or 50 or more employees. The following chart includes the state and local jurisdictions that currently require sexual harassment prevention training and which employers are covered.

Conclusion:

Learn the laws that apply to your business and train supervisors to identify the difference between the myths and facts.