Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP, tests your HR knowledge with this quiz.
A fun way to while away your time until the weekend officially arrives.
How much do you know about the basics of HR law? Take our quiz and find out! The usual rules apply: The answers immediately follow the questions, and I won’t know if you cheat.
Unless otherwise indicated, assume that there are no unique state or local laws involved.
Ready? Here we go:
No. 1: What does “right to work” mean?
- Everybody has a God-given right to earn a livelihood through gainful employment.
- Either the employee or the employer can terminate the employment relationship at any time and for any reason, or for no reason at all.
- An employee cannot be required to join a union as a condition of employment.
- Welfare-to-work. In other words, for an able-bodied person, getting off welfare and going back to work is the “right” thing to do. So, it’s “right” “to work.”
ANSWER: 3. Twenty-six states have “right-to-work” laws. A circuit court judge in West Virginia issued a decision last week invalidating that state’s right-to-work law, which was enacted in 2016. The court’s decision is sure to be appealed. In non-right-to-work states, union membership can be required.
No. 2: Well, then, what is it when “Either the employee or the employer can terminate the employment relationship at any time and for any reason, or for no reason at all”?
- A misstatement of applicable law.
- Promissory estoppel.
- Res ipsa loquitur.
- Employment at will.
ANSWER: 4, but I will give you credit if you answered 1. Generally, in an employment at will state, if the parties don’t have a contract of employment for a definite term, then either party can terminate the employment relationship at any time and for any lawful reason. Even in an employment-at-will state, an employer can’t terminate an employee for an unlawful reason, such as a discriminatory or retaliatory one.
Every state in the union is an “employment-at-will” state, except Montana.
No. 3: A clerical employee who is paid a weekly salary (not by the hour) is exempt from the overtime requirements of the Fair Labor Standards Act.
ANSWER: False. To be exempt from the overtime requirements of the FLSA, the employee’s job must meet a number of requirements, including the “duties test” for the administrative, executive, or professional exemptions. Most clerical jobs will not meet the requirements for the exemptions. (There are also exemptions for certain computer employees and outside salespersons, but a clerical employee clearly won’t fit into those, either.)
The salary threshold for exemption is pretty low right now — $455 a week, so most clerical employees would probably be fine there. But the U.S. Department of Labor recently issued proposed regulations that would raise this threshold.
No. 4: Bad Company has a policy that prohibits its non-exempt office staff from working overtime unless the overtime has been authorized in advance. Sheila flagrantly violates this rule. All the time. Which of the following can Bad Company NOT do to rectify the situation?
- Fire Sheila for repeatedly violating the rule against working unauthorized overtime.
- Stop paying Sheila for the unauthorized hours. That’ll teach her.
- Issue progressive discipline, up to and including termination of employment.
- Make Sheila leave on the nose at 5 p.m. (her regular quitting time) every evening.
ANSWER: 2. Employers can punish employees for working unauthorized overtime, and they can require employees to leave at their regular quitting times, but they can almost never withhold their wages. (Read “almost never” as “never.”)
No. 5: Your company is in Portland, Oregon, and your CEO has strong religious beliefs. She finds out employee Skip is an atheist. Not long afterward, she tells you that the company is overstaffed, even though it isn’t. She tells you to eliminate Skip’s position, even though he is a good employee and the company needs someone with his talents. The other employees, all believers of one type or another, are not laid off. Which is the MOST ACCURATE description of your company’s legal status?
- Great! Your CEO found a way to get rid of that heathen!
- Not so hot. You got rid of one of your best employees for reasons that don’t have anything to do with work.
- That’s not the way I would have handled it, but to each his own . . .
- You have violated the Portland civil rights code, which was recently amended to provide anti-discrimination protections to non-believers.
ANSWER: 4. Only in Portlandia . . . well, never mind that, because Madison, Wisconsin, also has an ordinance that protects non-believers. And even if you have only Title VII to worry about, you shouldn’t discriminate against anyone based on their religious beliefs or the lack thereof. (Exceptions apply to religious organizations and bona fide “ministerial” positions.)
No. 6: Ashleigh comes to you and says that she is being sexually harassed by her supervisor, Anakin. You know them both very well, and you know that Ashleigh is a big flirt and also a liar. On the other hand, Anakin is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent.* You’re swamped with work, and you don’t have time to conduct a thorough investigation, and you aren’t worried in the least that Anakin really did anything wrong. What should you do?
*Yes, I ripped this off from the Boy Scouts’ Scout Law.
- Investigate anyway, or better yet, bring in an outside investigator who can be more objective than you are.
- Call it a “he said, she said,” and close the case as “inconclusive.”
- Fire Ashleigh for making a false complaint.
- Lock the two of them in a room together until they work things out.
ANSWER: 1. Yes, Ashleigh may be a ditz, and yes, Anakin may be the greatest, but that doesn’t mean Ashleigh couldn’t be right this once. Never close a harassment case before you’ve conducted a thorough investigation. And if you feel that you know the personalities a little too well, do seriously consider bringing in an outside human resources consultant or employment attorney to conduct an objective investigation.
No. 7: While you’re in a restroom stall, you overhear Matt and Ben complaining about their 2 percent pay raises. Ben tells Matt that their co-worker Nicole got 3.5 percent. As the HR director, you know Ben is correct. Your CEO will be furious when he finds out that employees are talking about their pay. What can you do to nip this in the bud?
- Fire Matt, Ben, and Nicole for discussing confidential information.
- Conduct employee meetings, in which you warn them not to discuss their pay under penalty of disciplinary action, up to and including termination of employment.
ANSWER: 3. Assuming Matt, Ben, and Nicole are not “supervisors” within the meaning of the National Labor Relations Act, and that they don’t handle payroll or salary administration, this is “protected concerted activity” within the meaning of Section 7 of the NLRA. Section 7 of the NLRA applies even if your company is non-union. Among other things, employees have a legal right to discuss their terms and conditions of employment, of which pay is certainly one.
No. 8: Danielle has recently used up all of her leave under the Family and Medical Leave Act for her cancer treatments. Your company doesn’t offer short-term or long-term disability. Danielle brings you a note from her doctor saying that she will be able to return to work with restrictions in two weeks. What do you do?
- Immediately fill Danielle’s position before her return to work, then tell her you don’t have any vacancies. Then fire her, because she has no more job protection under the FMLA.
- Tell Danielle that you’d hold her job open for two weeks if she could return with no restrictions, but that you can’t hold it if she won’t be “100 percent” when she comes back.
- Consider both the FMLA and the Americans with Disabilities Act, since cancer is a “disability.” The FMLA is out of the picture because she has exhausted her leave. From an ADA standpoint, she can be required to return to full duty because her job duties are “essential functions.”
- Consider both the FMLA and the Americans with Disabilities Act, since cancer is a “disability.” The FMLA is out of the picture because she has exhausted her leave. From an ADA standpoint, it would be a reasonable accommodation to allow her two weeks beyond her FMLA period, so you give her that. Once you find out what her restrictions will be, you will assess whether they can be accommodated. You’ll consult with appropriate people (for example, her physician and her immediate supervisor), and you’ll “brainstorm” with Danielle about possible reasonable accommodations. If reasonable accommodations are possible, you will make them.
ANSWER: 4. Of course!
- 6-8 correct: Senior Veep! The HR professional to end all HR professionals!
- 4-5 correct: You’re going places, baby! HR director, or at least manager!
- 2-3 correct: You share a hallway with the HR department.
- 0-1 correct: An HR person fired you from your last job.
Just kidding! Everybody did great!