Nolo's Human Resources Bundle
Nolo's Human Resources Bundle
Can I run a credit check on a prospective employee?
Yes, if your state allows it. At least seven states (California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington) prohibit employers from pulling credit reports or limit how employers may use them to make hiring or other job decisions. Other states are considering similar legislation.
If you do request a credit report, you must comply with the requirements of the Fair Credit Reporting Act. This federal law requires employers to:
- get the applicant's consent before pulling the report
- tell the applicant (and provide a copy of the report) if you plan to reject the applicant on the basis of the report, and
- give the applicant an official adverse action notice if you don’t hire him or her because of something in the report.
Do I have to give employees time off to take care of ill family members?
Federal law, the Family and Medical Leave Act (FMLA), may require you to give employees up to 12 weeks of unpaid leave per year to care of certain family obligations. The FMLA applies to your business if three conditions are met:
- You have 50 or more employees who work within a 75-mile radius. Count all employees on the payroll, including those who work part time and those on leave.
- The employee seeking leave has worked for you for at least 12 months.
- The employee has worked for you for at least 1,250 hours (about 25 hours per week) during the 12 months immediately preceding the leave.
An employee may take FMLA leave to:
- care for a seriously ill parent, spouse, or child
- recuperate from a serious illness, or
- take care of a newborn or newly adopted child.
The FMLA also gives employees the right to take leave to handle certain responsibilities arising out of a family member's call to active duty or to care for a family member who suffered or exacerbated a serious injury while on military duty.
Under the FMLA, an eligible employee is entitled to take 12 weeks of unpaid leave in any 12-month period. An employee who needs leave to care for an injured service member who was seriously injured on active military duty can take up to 26 weeks of leave in a single 12-month period.
When the employee's leave is over, you must reinstate the employee to the same position he or she held before taking leave, with a few exceptions.
If you have a group health plan for your employees, you must also maintain insurance coverage for employees on FMLA leave. However, you can require employees to reimburse you for the premiums you paid if they choose not to return to work when their leave ends.
Can I read my employees' email?
Generally, you have the right to monitor employee email, as long as you have a legitimate business purpose. If, however, you have a company policy of email privacy--for example, if you tell your employees that their email will be confidential or will not be read by the company--then you should abide by that policy. Also, if you allow employees to designate certain messages as confidential or private, you shouldn't read the messages so designated unless employees are aware that you might.
What should a business do if someone complains about sexual harassment?
Even if you don’t think there’s any harassment in your workplace, take any complaint seriously and treat the employee with respect and compassion. If you don’t investigate, you greatly increase the chance your business will get sued or investigated by a government agency. And if you become angry at the employee, you open yourself up to claims of illegal retaliation. You also run the risk of polarizing your workplace, damaging morale, and lowering productivity.
Follow established procedures. If your company has written policies on harassment, follow them. Don't open yourself up to claims of unfair treatment by bending the rules. If the incident is serious, widespread, or involves a high-ranking executive, consider hiring an outside investigator.
Interview the people involved. Talk to the person who complained and anyone accused of harassment. Get details: what was said or done, when, and where, and who else was there. Take notes. Interview witnesses. In some cases, documents—an email, for example-- will prove one side right. Keep everything you learn confidential; otherwise you could be sued for damaging the reputation of the alleged victim or alleged harasser
Cooperate with government agencies. If the employee complains to the federal Equal Employment Opportunity Commission or an equivalent state agency, the agency may investigate. Be cooperative, but remember that the agency is gathering evidence that could be used against you. Consider hiring a lawyer.
Take appropriate action. Termination may be warranted if you conclude that egregious harassment, such as threats, stalking, or repeated and unwanted physical contact, occurred. A warning or counseling might be in order if the trouble arose out of a misunderstanding.
What are illegal reasons for firing employees?
You don’t have to provide a reason when you lay someone off—but you can’t fire someone for an illegal reason. Antidiscrimination laws apply to firing as well as hiring. These laws prohibit discrimination based on race, national origin, sex, religion, disability, or age. In addition, some states also protect against discrimination based on sexual orientation, marital status, gender identity, whether a person receives public funds, or other characteristics. State and federal laws also protect employees from being fired in retaliation for making a complaint of discrimination or assisting in someone else’s complaint of discrimination.
Other state and federal laws also protect workers from being fired for a variety of reasons, including, but not limited to, the following:
- forming a union or being involved in union activity
- reporting unsafe working conditions
- reporting illegal activities in the workplace (“whistleblowing”)
- asserting their legal rights, and
- holding certain political or religious beliefs.
Does my business have to give leave to new fathers as well as to new mothers?
If you offer any time off for a parent to spend with a new child, you must make it available to both fathers and mothers. If you offer a benefit that can be used solely by women -- like maternity leave -- you could be sued for discrimination.
Unless required by state or federal law, you need not offer special benefits to pregnant workers. You may not, however, fire, demote, or take any other negative employment action against a worker because she is pregnant. This means you should:
- Let a pregnant employee work as long as she can still do her job. (In times past, an employer could force a pregnant worker to stop working when she reached a certain stage of her pregnancy or was visibly pregnant. This is not legal.)
- Treat pregnant employees who need time off like other employees who are temporarily unable to do their jobs because of disability or illness.