We often hear that certain employer actions are “illegal.” Sometimes employees think so, sometimes its supervisors, and occasionally its even HR professionals (or even non-employment lawyers dabbling where they shouldn’t.) While some employer actions are legally prohibited, below are a few actions often thought to be illegal that are actually legal. Of course, these actions are often terrible ideas — and easy ways to get sued.
“So, How Old Are You?”
It is generally legal to ask job applicants about their race, religion, national origin, age, sexual orientation, family status, and lots of other personal (or downright nosy) questions. With the exception of asking about disabilities, no federal law and few (if any) state laws prohibit interviewers from asking about these characteristics. What laws prohibit is using information like a person’s age or national origin in making an employment decision.
So, should you ask these questions? Of course not. The answers are rarely part of determining the applicant’s job qualifications. Why ask about anything that will not factor into finding the best candidate? If you ask about one of these traits and don’t hire the candidate, there is a chance the candidate may conclude that the reason he or she wasn’t chosen was the answer to that question. In contrast, you cannot (reasonably) be accused of discriminating against a protected status that you do not know about.
“Hands Off My Time-Off!”
Vacation days, sick days, and other forms of paid time-off are generally granted by an employer, at its discretion. So, while there are some exceptions (especially in California and a few other states), paid time-off can be reduced, controlled, or taken away by an employer. Employment contracts, union contracts and some provisions of employee handbooks can also change that, but even where those don’t apply, employees (and many managers) believe that paid time-off is legally an employee’s “property” that cannot be touched by an employer.
Not true. In most jurisdictions no paid time-off is required. Employers giveth, and employers can taketh away. Of course, taking away paid time-off is a guaranteed morale-buster. Imagine if an employer revoked all vacation time. Will anyone want to keep working there? Plus, paid days off have value. Employees need time off, and few would be great employees if they worked 52-weeks-a-year. Likewise, without some sick days employees would bring illnesses to work, passing them around to their (unhappy) co-workers.
“Sorry, I’m On My Break.”
While a few states require certain breaks during the workday, most do not and no federal law requires rest or meal breaks for all employees. Generally, if you want an employee to work straight with no breaks, that is not illegal, though many employees believe they are entitled to regular breaks. (Federal law does address when breaks are paid or unpaid, so make sure to properly record the time. Certain jobs, like pilots and truckers, also have maximum total or uninterrupted hours, and breaks might be a “reasonable accommodation” for individuals with certain disabilities.)
But even where breaks are not required, is a break-free workday wise? No way. Few employees are at their best without reasonable breaks. Error and injury rates and turnover would likely skyrocket, while morale would plummet. Yes, unchecked breaks can kill productivity, but a lack of reasonable rest or meal breaks can have the same — or worse — effect.
There is lots of misinformation about what is “illegal.” But even some legal actions are bad ideas. Smart employers don’t take actions just because they can. They do what is best for their employees and best for their businesses.