Myths and Realities of Employment Law

There are fewer "illegal" interview questions than you might think. And you may feel your workplace is hostile, but would a civil court judge agree?

The workplace is governed by a thicket of employment laws that cover everything from when people get paid to how organizations can properly administer office dress codes. Most of us don't have a pressing need for a thorough knowledge of employment law, so we don't pay close attention to it. We have plenty of other fish to fry.

SEE OUR SLIDE SHOW: 7 Job Interviewer Pet Peeves (And How to Avoid Them)

Discussions around the water cooler, however, can give rise to employment-law myths, which take hold and thrive in the workplace environment. Once a week or so, a job-seeker or hiring manager asks me "It's illegal to give a job reference these days, right?" No, it's not illegal to give a job reference. It's a perfectly wonderful thing to do. But because so many large employers have told their department managers "don't give out references over the phone," the advice has morphed into a myth that giving references is illegal. The truth is, companies are worried about bad business practices that could result in a former employee who's unhappy with a reference filing a defamation claim, for example.

Subscribe to Kiplinger’s Personal Finance

Be a smarter, better informed investor.

Save up to 74%

Sign up for Kiplinger’s Free E-Newsletters

Profit and prosper with the best of expert advice on investing, taxes, retirement, personal finance and more - straight to your e-mail.

Profit and prosper with the best of expert advice - straight to your e-mail.

Sign up

Here are five more employment-law myths I’ve run into, with a reality check.

"Illegal" Interview Questions

It's a popular misconception that it's illegal for interviewers to ask questions about protected-class status (your age or ethnic background, for instance). Barbara Roth, a partner with the law firm Hogan Lovells, says the issue is more a bad business practice than a matter of legality. "Once an employer representative asks a job-seeker about his or her age, or pregnancy status, for instance, if a [legal] claim is made, the court may assume that the employer asked the question in order to use the information obtained in making its hiring decision," she says. That's why interviewers are typically forbidden from asking job-seekers about their kids, their age and their religion, among other off-limits topics.

Exempt Salaried Employees Can't Have Their Pay Docked, Right?

Another employment-law myth is that exempt salaried workers (people who get paid a fixed salary and don't track their work hours) can't have their pay held back when they miss work. Not true, says Roth. "There are situations where salaried employees can have their salary docked -- for instance, when someone has requested an extra week of vacation time before it's earned." In that case, says Roth, the company may dock the employee 1/52nd of his or her annual salary. Another legal salary-docking scenario: An employee is furloughed for a day or a week of work as a company cost-saving measure.

Hostile Work Environments Are Illegal, Right?

Not so fast, says Roth. "Just because your boss is a jerk and treats you badly doesn't mean it's unlawful. To have a hostile work environment that is legally recognized, you have to be a victim because of a protected characteristic; if your boss is a jackass to everybody, you lose. If you can show that your boss treats you differently because of a protected characteristic, such as gender, race or ethnicity, you can win that claim."

Again, allowing a hostile work environment is more a matter of bad business than a legal issue, from the employer's standpoint. An employee who has been abused and fired will sometimes tell his or her story so that it focuses on some protected characteristic. No former employer wants that.

You Can't Lose Your Job When You Are on Disability Leave, Right?

Hold on there. Cody Knight, an employment attorney with the law firm Paul Hastings, in Washington, D.C., says that both employers and employees can get confused about the status of people on disability or other leaves of absence. "People think that you can't get laid off when you're on leave from work," says Knight. "But companies close divisions and shut down operations for various reasons, and if you're on leave when that happens, you could be terminated."

That Employee Handbook Is My Contract With the Company, Correct?

Not so, says Knight. Because many employers require employees to sign a statement saying they've received and read the handbook they were issued, many workers mistakenly believe that the handbook is an employment contract. If you have questions about wage and hour laws, visit your state's Department of Labor Web site to learn more, and check out, the federal Department of Labor site, where you'll see questions and answers on common employment-law issues. Don't fall victim to mythology when employment law questions arise. Get the facts!

Liz Ryan
Contributing Columnist,