Q. Are there interview questions that are lawful and ones that are not?

A. The guiding principle behind any question to an applicant—whether the question is asked by the interviewer or appears on the application form—should be, “Can the employer demonstrate a job-related necessity for asking the question?” The intent behind the question, as well as how the information is used, is what the EEOC examines to determine if any discrimination has occurred.

Therefore, an applicant should only be asked questions that are job-related. Before asking the question, the interviewer should first determine whether this information is really necessary in order to judge the applicant’s qualifications, level of skills and overall competence for the job in question.

Q. What do I need to know before I terminate an employee?

A. Termination of employment is a difficult area that often spurs litigation. However, if the termination decision is arrived thoughtfully and conducted properly, an employer can dramatically decrease its risk of being held liable for employment discrimination or other types of wrongful termination or discharge.

Q. We often put workplace posters on our company intranet. If we only post them there, will we be in compliance?

A. Intranets can be effective tools to communicate with employees, especially if employees are geographically dispersed. Many employers also use company intranets to post their company newsletters and handbooks to ease the administrative burdens that physical distribution can create. But using your company intranet as the sole vehicle for displaying federally mandated workplace employment posters may not relieve you of your obligation under Fair Labor Standards Act (FLSA) regulations, for example, to physically display posters “in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy” ( 29 CFR 516.4 . ) Required posters must be displayed “so they are easily visible to the intended audience,” according to the U.S. Department of Labor instructions found in http://www.dol.gov/index.htm.

Q. When is overtime due?

A. For covered, nonexempt employees, the Fair Labor Standards Act (FLSA) requires overtime pay at a rate of not less than one and one-half times an employee’s regular rate of pay after 40 hours of work in a workweek. Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and firefighters employed by public agencies and to employees of hospitals and nursing homes.
Some states also have enacted overtime laws. Where an employee is subject to both the state and federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).

Q. Why does a company have to offer its employees progressive discipline if they are employed at-will?

A. Although the idea of giving employees written notice of substandard performance seems to contradict the employment-at-will doctrine, documenting discipline remains a critical activity that can help companies overcome outside legal challenges.

Q. What does the definition of insubordination cover? One of my employees rolled her eyes and gestured in a disrespectful fashion when I asked her to obtain information for me in connection with her job duties. When I asked her about this, she said she was trying to finish up some work before leaving on vacation. She did not supply me with the information and her attitude is typical. Does her conduct constitute insubordination?

A. The short answer is that because the employee deliberately failed to supply you with the information you requested, her conduct could likely constitute insubordination. However, it may not be appropriate to take an adverse employment action against her, such as termination, without first establishing a written record of the employee’s insubordination.

It is a well-established principle that employees, including those who hold executory or supervisory powers, have a duty to obey all reasonable instructions of the employer. See Cal. Lab. Code § 2856; Cornett v. NBC Weather Plus, LLC, 2008 NY Slip Op 50021U 1, 5 (N.Y. Sup. Ct. 2008).

Even if the instruction is given in bad faith, an employee may still have an obligation to perform and then, later, enter into a grievance process. See Reilly v. Polychrome Corp. and Sun Chemical Corp., 872 F.Supp. 1265, 1268 (1995) (citing Development Co. of Am. v. King, 161 F. 91 (2d Cir. 1908)). This duty exists to ensure that employers can effectively run their businesses.

Insubordination may involve different factual scenarios, but is generally defined as a willful or intentional failure to obey a lawful and reasonable request of a supervisor. The elements of insubordination commonly include: (1) a direct or implied order that was issued to an employee, (2) the employee received and understood the order and (3) the employee refused to obey the order either through a statement of refusal or nonperformance.

Insubordination should not be confused with insolence. Although both may serve as grounds for termination, insubordination most commonly has to do with an employee’s refusal to perform, whereas insolence tends to involve an employee being rude or disrespectful.