Never Ask These 10 Questions

Sometimes employers’ seemingly harmless questions can be problematic. They may violate certain laws or get in the way of a productive and engaged workforce. Here are 10 questions to avoid in the workplace:

#1: “Money is tight. Do you mind working off the clock for a little while? We’ll make it up to you later.”

Why? 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.

#2: “Can you work through your lunch?”

Why? 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 is not relieved of all duties, he or she 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 is not provided. Check your state law to ensure compliance.

#3: “Can you avoid mentioning your pay raise to co-workers?”

Why? 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.

#4: “Are you married? Do you have children? Does your spouse work? Are you pregnant? Do you have childcare arrangements?”

Why? Federal and many state laws prohibit employers from discriminating against workers based on pregnancy. Some states also expressly prohibit employers from discrimination on the basis of marital and/or family status. Avoid questions about an individual’s pregnancy, intentions regarding pregnancy, or whether they’re married or have children. If you want to confirm whether an applicant can meet certain work hours, overtime, or travel requirements, simply state these requirements and ask if they can meet them. If you do ask this question, be consistent and ask it of all applicants/employees, not just females.

#5: “Can I have the login information for your social media account? Can you add me as a friend on social media?”

Why? 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: What is the origin of your name? Where is your accent from? Where were you born? Where did you grow up?

Why? Federal and many state laws prohibit employers from discriminating against applicants and employees on the basis of national origin (where the individual was born, their ethnicity, or accent). Avoid questions that directly or indirectly reveal information about an applicant’s origin.

#7: “What year did you graduate from high school?”

Why? Federal law prohibits discrimination against applicants and employees who are aged 40 and older. Many states also prohibit age discrimination, some protecting younger workers. Even if you are asking merely out of curiosity (because you went to the same high school, for example), avoid questions that directly or indirectly reveal an individual’s age. If there are minimum age requirements for a job in order to comply with a law or for insurance purposes, you may ask whether the applicant meets those requirements, but don’t ask how old the applicant is.

#8: “Have you ever been arrested or convicted of a crime?”

Why? Various states and local jurisdictions prohibit employers from asking about arrests, and some also provide guidance on criminal history inquiries from their equal employment opportunity agency. Under federal law, questions about arrests are considered off limits, except in very limited circumstances.

Convictions: Many states and local jurisdictions have enacted laws that restrict employers from asking an applicant about convictions on application forms. Some restrict these types of questions until after the employer makes a conditional job offer. While there is no federal law specifically prohibiting employers from asking all applicants consistently if they’ve ever been convicted of a crime, the Equal Employment Opportunity Commission recommends employers avoid these questions on application forms. If and when employers do ask about convictions later in the selection process, the inquiries should be job related and consistent with business necessity. Check applicable laws and consult legal counsel before asking these types of questions.

#9: “Can you just ignore it? They’re probably just kidding around.”

Why? 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.

#10: “Can you tell the client I’m not here? I don’t feel like dealing with this right now.”

Why? Employees tend to follow the example set by their leaders. If a supervisor ignores rules or is dishonest, employees might follow suit. Establish a culture in which everyone, from the chief executive officer to the entry-level employee, is respectful and ethical.

Conclusion:

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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Costa Kapothanasis

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