Frequently Asked Questions About Employment Law

Employment law can be complex and overwhelming, especially when you find yourself in a situation that requires legal guidance. To help you navigate through the intricacies of employment law, we have compiled a list of frequently asked questions and their answers. Whether you are an employer or an employee, understanding your rights and obligations is crucial in maintaining a fair and respectful workplace.

Are there certain questions that an employer may not ask during a job interview?
When may an employee be entitled to medical leave from work?
How can an employee secure a reasonable accommodation for his or her disability by an employer?
How may an employer monitor employees in the workplace?
When is harassment illegal?
May an employer or supervisor play favorites among employees?
What is considered working time under wage and hour laws?
Is an employer limited in its ability to fire an employee?
May an employer fire an employee and then ask the employee to sign a waiver of claims or severance agreement?
What may an employer say about why an employee left or was fired?
Additional Resources

1. Are there certain questions that an employer may not ask during a job interview?

During a job interview, employers must be cautious about the questions they ask to avoid discrimination and potential legal issues. Some questions are considered off-limits as they may infringe upon an applicant’s privacy or violate anti-discrimination laws. Here are a few examples of questions employers should avoid:

Inquiries about an applicant’s disability or medical history, such as asking if they have any disabilities or how many sick days they took in the past year.
Questions related to an applicant’s race, national origin, religion, or family status, including asking about their plans to have children.
Inquiring about an applicant’s arrest record, as this may disproportionately affect minority applicants.
Asking about an applicant’s participation in union activities or past strikes.

It’s important for employers to focus on job-related qualifications and skills during interviews and refrain from asking personal or discriminatory questions.

2. When may an employee be entitled to medical leave from work?

Employees may be entitled to medical leave from work under various circumstances. Here are a few situations where an employee may qualify for medical leave:

Family and Medical Leave Act (FMLA): If the employee or their family member has a serious health condition or if the employee has a newborn or newly adopted child, they may be eligible for up to twelve weeks of unpaid leave per year under the FMLA.
Americans with Disabilities Act (ADA): If an employee has a disability and requires leave as a reasonable accommodation, the employer may be required to provide additional leave beyond sick or personal leave.
State-specific leave laws: Some states have their own family and medical leave statutes that provide additional leave or paid leave beyond the FMLA requirements.

It’s important to note that each situation is unique, and employees should consult with an employment law attorney to understand their specific rights and entitlements regarding medical leave.

3. How can an employee secure a reasonable accommodation for his or her disability by an employer?

Employees with disabilities have the right to request reasonable accommodations from their employers to ensure they can perform their job duties. Here’s how an employee can secure a reasonable accommodation:

Make a request: The employee should inform their employer about their disability and the need for an accommodation. They are not required to use specific language but should clearly communicate their request for assistance.
Engage in an interactive process: Once the request is made, the employer and employee must engage in an interactive process to determine if an accommodation is necessary and what accommodation might be appropriate. Both parties should cooperate and consider potential accommodations that do not impose undue hardship on the employer.
Provide necessary information: The employee may need to provide medical evidence of their disability or specifics about the essential job functions they require assistance with.
Explore alternatives: If the initial accommodation offered by the employer is insufficient, the employer should work with the employee to find other suitable accommodations that meet their needs.

It’s important for both employers and employees to communicate openly and work together to find reasonable accommodations that enable the employee to perform their job effectively.

4. How may an employer monitor employees in the workplace?

Employers have the right to monitor employees in the workplace, but they must do so within certain legal boundaries. Here are some methods employers may use to monitor employees:

Telephone and voicemail monitoring: Employers may monitor employee telephone calls or voicemail messages, but they must notify employees in advance and limit monitoring to business-related purposes.
Email and internet monitoring: Employers often monitor employee email and internet usage. Employees should assume that their online activities at work are not private.
Video surveillance: Employers may use video cameras in the workplace for security purposes. However, hidden cameras in private areas, such as bathrooms, are generally prohibited and may violate privacy laws.

It’s important for employers to establish clear policies regarding employee monitoring and communicate those policies to employees. Employees should familiarize themselves with their employer’s monitoring practices to ensure they understand their rights to privacy in the workplace.

5. When is harassment illegal?

Harassment is considered illegal when it is based on protected characteristics such as age, race, national origin, sex, religion, or disability. However, not all forms of harassment are illegal. To determine if harassment is illegal, several factors must be considered:

Severity or pervasiveness: The harassment must be severe or pervasive enough to create a hostile work environment or result in an adverse employment decision.
Protected characteristics: The harassment must be based on an individual’s membership in a protected class, as defined by anti-discrimination laws.
Reasonable person standard: The behavior must be offensive to a reasonable person and not merely a highly sensitive individual.
Employee’s reaction: The employee must show that they subjectively found the behavior offensive and that they took reasonable steps to report or address the harassment.

It’s important for both employers and employees to be aware of what constitutes illegal harassment and take appropriate measures to prevent and address such behavior in the workplace.

6. May an employer or supervisor play favorites among employees?

Employers and supervisors are generally allowed to have personal preferences or favorites among employees, as long as such preferences are not based on protected characteristics such as race, age, gender, national origin, or disability. However, favoritism may become illegal if it results in discriminatory treatment or disadvantages for non-favored employees.

Examples of illegal favoritism include granting better assignments, promotions, or benefits based on personal relationships rather than merit. Employers should ensure that their decisions regarding employee treatment are based on legitimate business reasons and not discriminatory motives.

7. What is considered working time under wage and hour laws?

Wage and hour laws govern the compensation and hours of work for employees. Understanding what qualifies as working time is essential to ensure compliance with these laws. Here are some key considerations:

Regular work hours: The time an employee spends performing their job duties during their regular work hours is considered working time.
Overtime hours: Any hours worked beyond the standard 40 hours per workweek, as defined by federal or state laws, may qualify as overtime and require additional compensation.
On-call time: If an employee is required to remain on the employer’s premises or be available to work during certain hours, that time may be considered working time, even if the employee is not actively performing tasks.
Training and meetings: Time spent attending mandatory training sessions, meetings, or lectures related to work is generally considered working time and should be compensated.
Travel time: Travel time during regular work hours or time spent traveling for work-related purposes may be considered working time, depending on the circumstances.

Employers should familiarize themselves with wage and hour laws to ensure they accurately record and compensate employees for all qualifying working time.

8. Is an employer limited in its ability to fire an employee?

Employers generally have the right to terminate employees at-will, meaning they can fire employees for any non-discriminatory reason or no reason at all. However, there are certain limitations on an employer’s ability to fire an employee. These limitations include:

Anti-discrimination laws: Employers cannot terminate employees based on protected characteristics such as race, age, gender, national origin, religion, or disability. It is in violation of antidiscrimination laws.
Retaliation: Employers cannot fire employees in retaliation for engaging in protected activities, such as reporting illegal conduct or filing a complaint against the employer.
Contractual agreements: If an employment contract or collective bargaining agreement is in place, the employer must adhere to the terms and conditions outlined in the agreement when terminating an employee.

It’s crucial for employers to understand their legal obligations and consult with an unlawful termination legal professional if they have concerns about terminating an employee.

9. May an employer fire an employee and then ask the employee to sign a waiver of claims or severance agreement?

Employers may terminate an employee’s employment and subsequently ask them to sign a waiver of claims or a severance agreement. However, there are certain legal requirements that must be met for such agreements to be enforceable. These requirements include:

Consideration: The employee must receive something of value in exchange for signing the agreement, such as severance pay or additional benefits.
Voluntary agreement: The employee must willingly and knowingly enter into the agreement without coercion or duress.
Adequate time to review: The employee should be given a reasonable period to review the agreement and consult with an attorney if desired.
Waiver of specific rights: The agreement should clearly outline the rights the employee is waiving and the claims they are releasing.

It’s advisable for employees to carefully review any agreement presented to them before signing and consider seeking legal advice to ensure their rights are protected.

10. What may an employer say about why an employee left or was fired?

When discussing an employee’s departure or termination, employers should exercise caution to avoid potential defamation or discrimination claims. Here are some general guidelines:

Stick to the facts: Employers should provide objective and factual information about an employee’s departure, such as the dates of employment and position held.
Avoid negative or personal comments: It’s best to refrain from making negative comments or sharing personal opinions about the employee’s performance or character.
Be consistent: Employers should ensure that the information shared about an employee’s departure is consistent across the organization to avoid any perception of discrimination or unfair treatment.

Employers should consult with legal counsel to understand the specific laws and regulations governing what they can disclose about an employee’s departure.

11. Additional Resources

For more information and resources on employment law, we recommend consulting the following:

It’s important to stay informed about employment laws and seek expert advice when dealing with specific legal matters in the workplace.

Remember, employment law can be complex, and the information provided in this article is for general guidance purposes only. For personalized advice and assistance, consult with an experienced employment law attorney who can assess your specific situation and provide the most accurate and relevant information.

If you need employment litigation, please call Setyan Law at (213)-618-3655. Free consultation.

Frequently Asked Questions About Employment Laws