FAQs on Employment Laws

FAQs on Employment Laws

Questions About Employment Law

Q: Can I refuse to hire people who smoke?

A: No. You can ban smoking during work hours; however you cannot prohibit the use of lawful products during nonworking hours.

Q: May I call an applicant's former employers for references?

A: Yes

Q: May I make my employees dress a certain way?

A: You may have a policy on personal appearance and hygiene expectations for your employees as long as it doesn't discriminate against a protected class.

Q: Can I require my employees to report to their workstations 15 minutes before their shift begins?

A: No. Anytime an employer requires an employee to report to work, which includes preparatory and concluding activities, is considered hours worked.

Q: Can I require my employees to report to work and wait around to see if we are busy enough to need their services?

A: No. Time spent waiting is hours worked.

Q: Is it true that since I pay my employees on a salary basis, I don't need to be concerned about overtime?

A: No. You still must pay overtime for all hours worked over 40 in a workweek unless the employee specifically meets an exemption from the overtime provisions of State and Federal statutes.

Q: Must I pay unused vacation pay to an employee who quits?

A: That depends on your written policies about time off. If vacation time is promised and earned, it is due and payable.

Q: Must I give severance pay to departing employees?

A: Federal Law and the laws of most states do not require severance pay.

Q: Can I give compensatory time off to employees instead of paying them overtime?

A: No. You cannot substitute compensatory time for overtime unless the employees are exempt from the overtime provisions of the law. Note that in some states the use of comp time for Administrative, Executive or Professional employees may jeopardize their exempt status.

Q: If an employee actually works 40 hours during the workweek and I also pay him 8 hours of holiday pay, do I need to pay time and a half for 8 of these hours?

A: No, wage and hour laws do not require that holiday pay, sick leave, or vacation hours be counted toward the 40 hours unless actually worked.

Q: When are wages due if an employee quits, is laid off, or is discharged?

A: Wages are due on the next regular payday for the period during which the employee was terminated or 15 days from the date of termination, whichever occurs first, either through the regular pay channels or by mail if requested by the employee.

If an employee is laid off or discharged, all wages are due immediately upon termination unless the employer has a written personnel policy that extends the time for payment of final wages to the employee's next regular payday for the period or to within 15 days from the termination, whichever occurs first.

When an employee is discharged by reason of an allegation of theft connected to the employee's work, the employer may withhold from the employees' final paycheck an amount sufficient to cover the value of the theft if:

a. The employee agrees in writing to the withholding; or
b. The employer files a report of the theft with the local law enforcement agency within 7 days of the termination.

If no charges are filed in a court of competent jurisdiction within 30 days of the filing of the report with local law enforcement, wages are due and payable upon expiration of the 30-day period. If the employee is found not guilty of the charges or if the employer withholds an amount in excess of the value of the theft, the court may order the employer to pay the employee the withheld amount plus interest.

Q: Is it okay for an employer to require that all keys and uniforms be returned before paying employees their final paycheck?

A: No, you must still follow the law as explained in the preceding answer.

Q: Can I withhold payment of wages to offset charges made by the employee at my business?

A: Yes, provided there is a preexisting signed agreement with the employee prior to any charges.

Q: Can I require that employees come to my business to get their final paycheck?

A: No, you must pay through regular pay channels or by mail if requested by the employee.

Q: Can I deduct from wages the amount of damages caused by an employee?

A: No, wages cannot be withheld for shortages, damages, or mistakes.

Q: Can I pay my employee less than minimum wage during a training period?

A: No, even if an employee signs an agreement to work for less than minimum wage, it is unenforceable because it is illegal.

Q: I pay my hourly employees every 2 weeks so I just pay overtime for any hours worked over 80. Is this okay?

A: No, each work week stands alone and cannot be averaged for minimum wage or overtime. A workweek is defined as a period of 168 hours during seven consecutive 24-hour periods.

Q: I require my food servers to pool their tips and I disburse these tips among all my employees. Is this okay?

A: No - Tips belong to the employees who provide the service and only the employees to whom the tips belong should arrange any tip pool agreements.

Q: We have a tip container for patrons to leave tips at our espresso bar. We donate all tips collected to local charities. Is this okay?

A: No. Tips belong to the employees and employers should not try to control them.

Q: What type of deductions can an employer make from a paycheck?

A: Employers may only deduct from wages that which the employer is required to do so by law (e.g. example, federal, state and payroll tax withholding, or a garnishment order. Employees may authorize in writing additional deductions for the employee's benefit (e.g. health care premiums). Employers must furnish itemized pay statements to each employee at the time of payment of wages showing all deductions for the pay period, even if the employee has no deductions.

Q: I have a written policy that requires employees to get written permission before they are allowed to work any overtime; however, I have an employee who works overtime without approval. Must I pay him overtime?

A: Yes. Unless the employee is exempt from overtime, you must pay the employee overtime for all hours worked over 40 in a workweek. If an employee does not follow your established rules and policies, you should address these problems through disciplinary measures.

Q: I sometimes hire independent contractors. How is independent contractor status defined?

A: According to the law, "independent contractor" is free from control and direction over the performance of the services, and is engaged in an independently established trade, occupation, profession or business.If these requirements are not met, an individual performing services for payment is presumed to be an employee.

Q: If I hire someone with a previous injury, am I responsible for the injury?

A: No. If an employee has an injury from a previous employment, the previous employers' workers' compensation insurance is responsible for any costs associated with that injury.

Q: Is there any way that when I fire someone for something because that employee is at fault, I can make sure they don't collect unemployment insurance?

A: In order to insure a fair determination, employers should follow good personnel practices, such as documenting and sticking to personnel policies, making sure employees are aware of the policies, giving employees a chance to improve poor performance and providing specific termination information to the Unemployment Insurance Division.

Q: As an employer when am I required to make a reasonable accommodation under the Americans With Disability Act?

A: Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodations also include adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.


Q: May I drug test my employees?

A: Generally yes, but check with your state for drug testing guidelines.

Q: What information should be included in an employees' handbook?

A: Employee handbooks should include clearly written and defined policies of your company. Having clearly written policies that are shared with and signed off by your employees will help them to understand and follow them. Policies may include, but are not limited to: Discrimination, Absences, Alcohol/Drugs, Discipline, Breaks and Meal Times, Payroll and Benefits, Hiring and Promotions, etc.

Q: Is it necessary that I give a discharged employee a reason for discharge?

A: Yes, when a discharged employee demands in writing to know why he or she was fired, the employer must furnish the discharged employee with a written statement of the reasons for the discharge within a reasonable time after the demand. The employer may not "blacklist" or prevent the discharged employee from procuring employment elsewhere.

Q: How can I avoid a wrongful discharge suit?

A: Any former employee can file a wrongful discharge suit, but some up-front work by the employer can make the difference in court. Keep documentation on all your employees' performance (not just on problem employees). Enter dates of problems and document all actions taken. Enforce company policy in the same manner for each of your employees.