Yes, it’s legal … queries from a combined 13 years of blogging about the workplace

by Evil HR Lady on October 25, 2013

Earlier this week,  Alison Green, better known as Ask a Manager, answered a question about whether it’s legal for your employer to make you clean up rat poo. I thought that was amusing and then we talked how awesome it would be if we put together a book of all the fake employment laws that people think exist but actually don’t.

We are too lazy to put together a book, but we can manage a blog post. We both went through our archives and came up with this list of things that people have asked us about. Without further ado, here is a (still not fully comprehensive) list of the legalities we’ve addressed in the last combined 13 years of blogging (seven for me and six for Alison).

It’s legal for your manager to try to make you feel guilty about not coming in on the weekend.

It’s legal for your manager to make you clean up rat poo.

It’s legal not to offer direct deposit.

It’s legal for your manager to share your resignation letter with your coworkers.

It’s legal for employers to favor candidates with more recent experience than you have.

It’s legal for your company to prohibit you from talking at work with your coworker who happens to be your husband.

It’s legal for your company to ask you to distribute personal mail to employees who have it sent to your office.

It’s legal for a company to relist a job rather than hiring any of the candidates they interviewed in the first round, no matter how qualified those candidates might be.

It’s legal for your company not to let you take home the employee handbook.

It’s legal for your company to ban fish from being cooked in the office microwave.

It’s legal for your coworker to refuse to speak to you.

It’s legal for your employer to designate one of the office bathrooms as being for guests only.

It’s legal for your manager to tell your coworker that she plans to write you up.

It’s legal to remove someone from the work schedule until they agree to show up for a staff meeting.

It’s legal to fill a job without advertising it and giving other people a chance to apply for it.

It’s legal to ban dating among coworkers.

It’s legal not to hire someone because they don’t seem enthusiastic about the job.

It’s legal for your boss to ask you if you’re looking for another job.

It’s legal for a company to decide not to recruit for a position internally and only consider external candidates.

It’s legal to require your attendance at a weekend event.

It’s legal for your employer to reveal your salary to your coworkers.

It’s legal for your company owner to hold his or her spouse, who works there, to different standards than everyone else is held to.

It’s legal to contact people who aren’t on your reference list and ask them about you.

It’s legal for your boss to ask you to pick up his lunch, even though it’s not in your job description.

It’s legal for your manager to yell.

It’s legal for a company to maintain a do-not-hire list.

It’s legal to make you stay at the office and work if you decline to go on the company cruise.

It’s legal to share your performance stats with your coworkers.

It’s legal for your employer to have a random coworker deliver the message that you’re fired.

It’s legal to have you train a new coworker, even though you have no experience training and find it stressful.

It’s legal for your boss to let your coworker have three-day weekends, even though she doesn’t have seniority.

It’s legal for your boss to require you to read a self-help book and test you on it.

It’s legal for your employer not to give raises.

It’s legal to be sent home because you’re in a bad mood because the windshield of your car was smashed.

It’s legal to ban sugary foods from the office.

It’s legal for your employer to give your cell phone number to other employees.

It’s legal for your employer to ban you from using your personal computer on their network.

It’s legal to cut your pay going forward.

It’s legal to ban gambling at the office.

It’s legal to fire someone who is pregnant (just not because of pregnancy).

It’s legal to quote scripture at work.

It’s legal (for now in most states) to discriminate against the unemployed.

It’s legal to ask for a salary history.

It’s legal to refuse to hire you if you don’t provide a salary history.

It’s legal to fire you for complaining about something that is not illegal.

It’s legal to give you a bad reference.

It’s legal to share the content of your PIP with other people.

It’s legal to not hire someone because you dislike their relatives.

It’s legal to hire your cousin over a more qualified unrelated candidate.

It’s legal to Google your coworkers.

It’s legal to fire someone who has cancer (just not because of the cancer).

it’s legal to require a general release before paying severance.

It’s legal for HR to forward your confidential emails to other people.

It’s legal to gossip at work.

It’s legal to fire someone via email.

It’s legal to ask someone if they speak English.

It’s legal to still terminate someone who hands in a resignation and then changes her mind.

It’s legal to be a jerk.

It’s legal to fire someone for being a jerk.

It’s legal to have a policy against rehiring anyone.

It’s legal to require overtime (as long as it’s paid properly).

It’s legal for your boss to require you to put tulle bags of wedding favors together

{ 49 comments… read them below or add one }

Elisabeth October 25, 2013 at 8:13 pm

My favorite: It’s legal for your company to ban fish from being cooked in the office microwave. Although we allow this, this should be banned in all offices, shouldn’t it? The smell is nauseating!

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Evil HR Lady October 25, 2013 at 10:19 pm

I wholeheartedly agree. Fish? Blech

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Shan October 28, 2013 at 2:18 pm

Why not popcorn then? Especially if I find the smell of butter nauseating?

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Jeff M October 29, 2013 at 11:51 pm

Ban it!

And coming from the commercial seafood world I must note I fully support fish consumption in the workplace.

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Barb February 5, 2014 at 8:25 pm

Someone in my office was reheating scallops… at 9:30 in the morning! So glad my office is right by the break room!

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Nicole October 25, 2013 at 8:56 pm

You and AAM make my day :)

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Evil HR Lady October 25, 2013 at 10:19 pm

Thanks! It was really fun to go through the old posts.

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Diane Brown October 25, 2013 at 10:00 pm

This is great! Thanks!

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Evil HR Lady October 25, 2013 at 10:20 pm

You’re welcome. It is a pretty awesome list.

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Anonymous October 25, 2013 at 10:09 pm

It’s probably obvious, but given that you and AAM are both American, it’s worth the caveat that many of these are illlegal in other areas. I’m speaking from a European / UK perspective. As an example, sharing personal mobile numbers could breach data laws.

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Evil HR Lady October 25, 2013 at 10:21 pm

True! Laws vary wildly. And things that are illegal in the US are legal elsewhere–like in Switzerland where job postings often state the sex and age of the person they’d like to hire. So freakishly illegal in the US.

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Anonymous#2 October 25, 2013 at 10:31 pm

Yes, some would not fly in Canada. Some could be construed as constructive dismissal here, OR still leave a case for a lawsuit. Employment Standards here considers ‘fairness’ when deliberating complaints. And although some are legal, doesn’t make them fair or right – like the one about hiring family members and holding them to different standards… the favouritism thing is a sure fire way for a company to lose some loyal ‘unrelated’ employees… even if they are being ‘legal’.

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Evil HR Lady October 25, 2013 at 10:36 pm

Oh absolutely. A lot of these are really, really dumb things for managers/owners to do. But, they can do them! They absolutely shouldn’t.

Like, for instance, the relatives thing. The longer I do this job of taking questions the more I think family owned businesses are a disaster. I realize, though, no one who works for a fabulous family owned business ever writes me. AND I know that Wegmans, the best store ever, is family owned.

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EngineerGirl October 26, 2013 at 4:36 am

I’m sorry Suzanne. Wegmans is great but I think that Bronners CHRISTmas wonderland is the best store ever. And it is family owned too.

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Evil HR Lady October 27, 2013 at 3:41 pm

I have never been there, but I think a field trip is in order to determine the truth of which is best.

I stil maintain Wegmans will win. (And for full disclosure, I used to work for Wegmans HR. In fact, it was my first exempt level HR job. They trained me. That’s why I know all that stuff above.)

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JB October 26, 2013 at 7:58 pm

This list is proof that the United States is in need of a serious labor law overhaul. Cleaning rat poo? Making it more difficult to read an employee handbook? Giving out your personal cell number? And telling coworkers how much you make (yay I make a lot of money, feel free to come rob my house now). Has this country really become so dumb that these are the things businesses spend their time asserting their right to do?

Susan, you may want to clarify “It’s legal to fire you for complaining about something that is not illegal”. There are whistleblower protection laws that may cover this that specifically state it is NOT legal to fire someone for complaining about something that they BELIEVE is illegal.

This is why I always say, if you have an issue at work, get an attorney first before doing anything so you know your rights.

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Evil HR Lady October 26, 2013 at 8:23 pm

Whistleblower laws only protect people who are blowing actual whistles. To give an extreme example. Let’s say you come to me and complain that your coworker has dyed her hair green.

No law has been violated by your coworker having green hair. Therefore, you aren’t due any whistleblower protection for pointing out to HR that she has green hair.

If you complain, however, that your coworker is sexually harassing you, then whistleblower protections come into play.

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JB October 26, 2013 at 9:22 pm

Prior to reading the above, I would think that being asked to clean up a substance that would pose a health risk (rat poo) would be illegal. And I would refuse to do it. Learning now that this is legal, one may read the above and think they could be fired if they refused under the same assumptions.

Can you write a counter-part to this article, detailing all the employee rights that individuals may not be aware of? One to start with, is that when meeting with HR/the employer to discuss a complaint, we have the right to bring another co-worker in with us as a witness.

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Alison Green / Ask a Manager October 27, 2013 at 1:43 am

I might be wrong about this, but I can’t think of any law that requires your employer to allow you to bring a witness with you into a meeting with HR.

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Evil HR Lady October 27, 2013 at 6:07 am

There isn’t a law that allows that. Some union contracts have that as part of the contract, but you can make a contract for just about anything.

So, that’s another for our list. It’s not illegal for HR to refuse to allow you to bring a witness into a meeting.

Also, in many states it is illegal to record someone without their knowledge/permission, so don’t try to make your own witness with your iphone without asking first.

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JB October 29, 2013 at 5:48 am

Alison’s response is actually a good example of why having a witness could be helpful. I suggested a witness was a RIGHT not a REQUIREMENT. So having one could at the very least help eliminate misinterpretations as well as keep both sides a little bit more honest. I did get this idea from someone in a union, but I also think it is just good old fashioned advice that could apply in any situation.

Regarding recording the meeting—I think this is a great idea actually. There are 12 states that don’t allow this, but in the other 38 states (called “one party” states) an individual can record any conversation that they are a part of without making the other party aware.

Another recommendation is to follow-up all verbal meetings with a written summary of what was discussed. This is another piece of sound advice, but I would like to know some more examples that employees may not be aware of.

Several readers above mentioned that many of the “legal” activities in the article would be illegal in other countries. Yes, the United States lags many parts of the world in labor relations. The sick time and maternity leave is worse than most third world countries. I would think we should be discussing how to be MORE progressive rather than less. There are some examples given (cleaning rat poo, making employee handbooks difficult to read, using workers as personal assistants assembling wedding favors) that just screams 14th century to me. Why are these things still legal, what could be done to change it, and, in general, what can employees do to protect themselves? I don’t expect the HR side of the business to necessarily be bolstering this type of guidance, but for the sake of human progress, I hope that the average working is at least pondering them.

Alison Green / Ask a Manager October 29, 2013 at 7:17 pm

I’m not sure I understand your response. Having a witness present is not a right. Your employer isn’t required to allow it, and you don’t have the right to insist on it. You can certainly ask to bring one, but there’s no entitlement to being allowed to.

Lex Luthor October 30, 2013 at 7:09 pm

JB is obviously either a union organizer/sympathizer and/or a plaintiff’s atty — but ill-informed in either case, as Anonymous 1000 is 100% right.

JB October 30, 2013 at 12:18 am

Can you both please fact check regarding employee’s right to having a witness. Start here http://benefits.hrlaws.com/node/1048131.

This article is a little old, so when you find the most updated law on this, you can copy and paste it back on this chain.

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JB October 30, 2013 at 12:29 am

Never mind, I found it. Ok here http://smallbusiness.chron.com/rights-nonunionized-employees-coworker-present-disciplinary-meeting-12160.html

It is a RIGHT and it is law. The company also has the right to refuse, but if they do so they cannot hold a meeting at all.

Can we please start a list now of employee rights that managers/HR thinks are fake but are really real? Seriously, it would be a great service to both sides. This stuff is super complicated as I’m sure this long chain has confirmed, so who better to unravel it then you guys?

Alison Green / Ask a Manager October 30, 2013 at 3:17 am

Ah, you’re talking about investigatory meetings specifically — as opposed to giving feedback, giving a performance warning, etc. The witness thing is only for investigations.

JB October 30, 2013 at 4:04 am

Now you know.

anonymous 1,000 October 30, 2013 at 5:53 pm

Actually, that’s still wrong. The new and old articles you posted are both outdated.

The right to have a representative present at investigatory meetings is traditionarlly reserved for union employees–and still exists today–whether it is expressly provided in the collective-bargaining agreement or not (a right which stems from the landmark U.S. Supreme Court case, NLRB v. J. Weingarten, Inc.; hence “Weingarten rights”) And in 2000, the NLRB extended those rights to non-union employees for a brief time.

But the NLRB reversed itself about 4 years later under the Bush-appointed Board. So currently, non-union employees do not have a right to representation at disciplinary or investigatory meetings.

The NLRB recently affirmed this position in a case called Praxair Distribution, Inc. (2/21/12)(“Under existing case law, Weingarten rights do not apply to unrepresented workers such as the employees of the Praxair operation involved here.”)

JB October 30, 2013 at 11:10 pm

Thanks anonymous. It seems I have found someone who is well-versed in labor law and I would like to pose a question to you. I researched NLRB v. J. Weingarten and see it was overturned in 2004, however, the second article mentions a related ruling in July 2011. What happened in between 2004-2001? Is this the same law or there’s another one with a different name?

The gold digger October 27, 2013 at 3:03 pm

And telling coworkers how much you make

Considering many employers don’t want employees discussing salaries because they don’t want to have to justify what they are paying or not paying, I would be very much against a law forbidding people from comparing notes on pay.

And in general, fewer laws are better than more laws. Just because something is not a good idea does not mean that the government should get involved. Companies that have horrible management practices can tend, over time, to lose good people to better managed companies.

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Evil HR Lady October 27, 2013 at 3:42 pm

Lots of companies don’t want you to discuss your salary, but that is, actually, something that there are actual laws around. It is a violation of law to prohibit your employees from discussing workplace conditions. Salaries are part of that.

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Sara October 26, 2013 at 11:36 pm

Love this – thanks! And yes, how rude is it to cook fish in the microwave at work??!! Always hated that….

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Evil HR Lady October 27, 2013 at 3:48 pm

Me too. Blech.

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Stefania October 28, 2013 at 12:51 pm

Where can I read more about “It’s legal for your company to prohibit you from talking at work with your coworker who happens to be your husband”? Sounds really the most weird thing ever you may be asked not to do.
Great blog post anyway.

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Anonymous#2 October 28, 2013 at 6:35 pm

I think it would fall under the “violation of law to prohibit employees from discussing workplace conditions” if they are both employees…. now if they were constantly talking about ‘home’ issues at work, I could see that it would be wasting company time, and ask that they not discuss their personal lives at work. Same thing should happen at home though… Couples who work with each other should be forbidden to discuss work at home (well, okay, maybe only for like 15 minutes and then that conversation is done for the evening! – everyone needs to vent sometimes;P)

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Evil HR Lady October 29, 2013 at 1:47 pm

That’s one of Alison’s posts. If you search her archives, you’ll probably find it.

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Jay from Philly October 28, 2013 at 8:06 pm

Most of those items listed should be legal because making them illegal would result in the cure being worse than the illness. I’ll add one more.

It is legal for you to be forced to go to the company bowling party.

The department I was working in was shorthanded and I was doing the work of three people. I saw that when all the other employees would be out bowling I could use that time to catch up on some of my backlog. I informed the bowling party organizers (the two women in every office who are always organizing the next charity event or office party or pollyana but never do any real work) that I wouldn’t be going. The day before the event I was pulled into my supervisor’s office to be informed that I could not NOT go. The organizers had gotten miffed that I wasn’t going to attend and contacted my department head to make sure I want. If I had not requested the time off I was compelled to go to the bowling party. Of course by that time all the teams had already been set up and I was not able to bowl but had to stand around the bowling alley for several hours. It did wonders for my morale, I can tell you that.

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CB October 28, 2013 at 10:16 pm

I think what many employees miss is that legal/illegal is not the only measure of an appopriate workplace and by not articulating the (perhaps unintended) consequences of certain policies and trying to call out illegality, they lose credibility. For instance, we just had a salesperson complain about last minute optional overtime. Instead of simply noting that earlier notice would help with uptake and results, he lodged a complaint that it discriminated against single parents. Apparantly single parents are the only people with weekend plans. His point was lost as soon as he tried to claim discrimination.

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Evil HR Lady October 29, 2013 at 1:50 pm

I think that’s a great point–I admit that I used to inwardly groan when someone would start their complaint with, “I’m a single mom…” because 9 times out of 10 their complaint would not be because they were being treated differently than their coworkers, but because they were being treated the same, and wanted to always be the exception.

If you have a real complaint, talk about how it affects the business and people will be more inclined to listen.

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Anonymous October 29, 2013 at 4:06 am

Cleaning up rat poo can be really dangerous and I would still refuse to do it.

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JB October 29, 2013 at 6:08 am

Agreed.

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Jeff M October 30, 2013 at 12:07 am

I followed this thread at AAM’s site too and I’m just not feeling the great rat poop phobia. I’ve spent time in corp offices, warehouses, and seafood factories, the only rat poop I’ve seen was easily taken care of with a broom and dustpan.

If others are picturing some mass poop site at a toxic environmentmental scale I can understand the hesitation to clean up, but I have to ask: Have you actually ever seen that?

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Fran Sepler October 30, 2013 at 4:39 pm

Perhaps the proviso should be added that these things may be legal if they apply to everyone, but if they only apply to you and you are a member of a protected class, it may NOT be legal. Also, some of these things are legal or illegal based on exempt or non-exempt status. Also, the idea that it is “legal” to ban dating between coworkers would not apply to any public employer, because of constitutional protections on freedom of association. Sorry to rain on simplicity, but these kind of glib things give license for people to behave in stupid and harmful ways.

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HR Manager October 30, 2013 at 6:24 pm

The problem with this list is that there is no disclaimer that any employer attempting to compel an employee to perform a task, such as the ones on your list should at the very minimum research or in some cases as noted by JB, request the opinion of counsel. As far as the Rat Poo I would suspect the Department of Health and or OSHA would not be in favor of any employee being exposed to the excrement.

It is legal for your manager to share your resignation letter with coworker SO LONG AS SENSITIVE INFORMATION SUCH AS A MEDICAL CONDITION, is not included.

It’s legal for your manager to tell your coworker that she plans to write you up. Yes, but I would fire the dingbat Manager.

It’s legal to give out cell phone numbers yes, but I would get a written authorization or give the employee the right to opt out. I have employee with restraining orders on former spouse/partner. You want to know how many times an idiot reception/secretary/yes and even attorneys felt it was OK to give out information.

What do you mean by confidential emails. Some idiot employer is going to read that and think (Oh look what I can do!) There is no filter on your list.

Some items on the list are just plain dumb and I do not doubt some employees ask this. Others, employers she review their employment manual before any of these things are attempted.

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Evil HR Lady November 1, 2013 at 12:06 pm

We never said these things were good ideas, just that they were legal. There are always exceptions–if your letter of resignation contains top secret information that your coworkers don’t have clearance to know then of course it’s illegal to share it.

But, as to medical things, most employers aren’t subject to HIPAA regulations, so there is more latitude in what can and cannot be shared. Should a manager share info on another employee’s health? Of course not. Can they legally? Sometimes.

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Lex Luthor October 30, 2013 at 6:59 pm

Great, entertaining list. A few of these, though, while perhaps not unlawful per se, seem very likely to lead the employer into hot water. Quoting Scripture is the first that comes to mind; if done frequently, that could easily be construed as religious harassment (or evidence of bias against non-Christians), and it’s kinda hard to think of a legitimate business reason for quoting Scripture. Asking if ees speak English is another inquiry that would have to be justified as job-related and consistent w/ business necessity, otherwise it would be unlawful under the disparate impact theory.

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Steven M. Sweat October 31, 2013 at 8:00 pm

As a plaintiff’s employment lawyer, I can’t tell you how many times per month that I have to tell prospective clients that, “Yes, what happened to you is extremely unfair but …. it’s not illegal.”

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Lesley November 1, 2013 at 12:35 am

For the rat poo thing, I think an employee would have some reasonable legal basis for a complaint if their employer didn’t at least give them a mask and gloves. Hantavirus is no joke.

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Noah November 5, 2013 at 1:43 am

Re: sugary food. An absolute ban might be illegal in some circumstances. Allowing sugary food might be a reasonable accommodation for certain medical needs — for example, salt/sugar imbalance is a known migraine trigger, and an employer might be required to allow a migraine sufferer to consume sugary foods as a reasonable accommodation. (I, personally, would require that accommodation if I worked somewhere with such a ban, and I think I would get it.)

But, of course, it’s not generally illegal.

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