HR Base Camp Roundup – April 5th, 2022

This week in HR Base Camp and CEDR’s HR Solution Center, employers were asking about requesting applicant salary history, deducting the costs of company property from a departing employee’s final paycheck, and accommodating pregnant employees. Here are the top HR Q&As from the last week:

  1. Can I ask applicants about their salary history and/or ask for proof of salary history?
  2. Can I deduct the cost of unreturned property from an employee’s final paycheck?
  3. Do I have to give a pregnant employee a reduced schedule even if it’s not medically necessary?

 
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Can I ask applicants about their salary history and/or ask for proof of salary history?

An employer was hoping to negotiate salary with one or more applicants and wanted to know if it was okay to ask for proof of their salary history.

Answer: You will want to tread carefully here. 

Many jurisdictions have enacted laws which prohibit employers from asking applicants or the applicant’s previous employers about their previous salary. These laws are popping up in new areas all the time. 

In general, CEDR does not recommend asking either the applicant or former/current employers about pay history, even if there are no laws prohibiting it in your state. The new employee’s pay should be determined by the pay range you’ve established for that position in your office, not the amount the employee’s prior office set. The goal of salary history laws is to address the documented wage gaps that exist between men on the one hand, and women and minorities on the other. 

One reason for the continued gap is that employers often base a new employee’s pay on their pay history, which then locks in a lower pay scale for women and minorities over the course of their careers. The thinking is that, if an employer can’t use salary history as a starting point, then they’ll be more likely to accurately and fairly base wages on the credentials of the candidate and the value of the position to their business. 

So, to summarize, though you may be able to ask about salary history where you live, we generally recommend against doing so. But, if you choose to make this part of your hiring process anyway, make sure you’re up to date on the current state of employment laws in your area and understand how they apply to your business.

We’re glad this question came in. It’s a common question and an important consideration for all people managers. It’s also why we always recommend that employers reach out to an HR expert before engaging in the hiring process to make sure you’re following the letter of the law as it applies to you. If you’re a CEDR Member and are looking to hire a new employee, you can submit a support request for expert guidance here. If you’re not a member yet, click here to set up a time to talk.

Employment laws are always changing, which can make it difficult to stay on top of regulations as they roll out in your area. The way that laws apply will also change as the number of employees at your business grows – the more employees you have, the stricter the laws generally will be.

For more insights on hiring best practices from CEDR’s HR experts, download our Free Hiring Guide, “How to Hire Difference Makers”.

 
Make sure your next hire is a difference maker. Click to download CEDR's Free Hiring Guide!
 

Can I deduct the cost of unreturned property from an employee’s final paycheck?

An employer was curious if they could deduct the cost of unreturned uniforms that they had supplied from an employee’s final paycheck.

Answer: Final pay laws vary greatly from state to state in terms of when that paycheck must be issued and what must be included in the check. But, as a general rule of thumb, you can’t withhold an employee’s final paycheck for any reason. This includes deducting payments for unreturned property, including uniforms. You should never deduct anything from an employee’s final paycheck without written authorization. And, even if you do have some kind of signed form on hand indicating that the employee agreed to such a deduction, you may still not be in the clear to withhold pay for unreturned property.

Failing to comply with final pay laws in your state can result in heavy penalties, including doubling the amount owed to an employee and finding yourself responsible for any legal fees that might pop up due to the employee seeking legal counsel to collect unpaid wages. And, further, failing to provide an employee with their final paycheck is a federal wage violation in all instances.

When it comes to collecting unreturned property or payment for unreturned property, there are steps you can take, but we recommend pursuing the return of those items separate and apart from final pay. When this sort of issue comes up for your business, you’ll want to work with an HR expert to make sure that you are handling this process legally.

You can read more about final pay here.

If you’re a CEDR Member, submit an HR request to talk through issues related to final pay and risk assessment whenever an employee resigns or you determine it’s time to terminate.

If you’re not a member, you can get answers to your HR questions in our private, professional Facebook Group HR Base Camp or set up a time to talk to us about membership here.

For more on the proper way to approach any kind of employee separation at your business, download our Free Separation Guide here.

 
Sometimes the right thing to do is say goodbye. Click to download CEDR's free separation guide.
 

Do I have to give a pregnant employee a reduced schedule even if it’s not medically necessary?

A doctor in California had a pregnant employee ask to cut back her hours through the end of her pregnancy. The employer wanted to know if they had to honor that schedule as presented or if there was something else they could do.

Answer: Guidance for pregnancy related issues typically requires a detailed discussion with an expert HR advisor since there are several variables that can impact how accommodation and leave of absence requests are handled. That being said, we can provide some general guidance as to how to approach the situation.

If she was requesting this because she was having medical issues related to her pregnancy, then we would want to start with getting information from her healthcare provider about what work restrictions should be observed. But, in this situation, she is making a personal request due to her preference to work fewer hours as she prepares for the arrival of her baby. As long as this remains a personal request and not a medical need, you have a lot of discretion as to what you want to approve. 

If you haven’t already, you should have the employee put in a formal request that details the schedule she would like to work. Make it clear that, while you’re willing to consider a reduced schedule, you still have to be able to run your business smoothly and have the right level of staffing each day. So ask her to provide you with a specific schedule (e.g., 10 am to 3 pm) as opposed to suggesting that she come in “around” a certain time each day. 

Once you have that, again since this is a personal scheduling request, it is ultimately up to you whether you are willing to grant any type of reduced schedule request at all. Make sure this is all thoroughly documented. If this does become a medical issue at some point, you’ll need to engage in the interactive process. You can also read more about accommodation requests here. Keep in mind that California and several other states have stricter rules about disability accommodations than federal law. Again, these situations are extremely nuanced and unique from practice to practice, state to state, and employee to employee, so it’s important to work with an HR expert to get this process right.

In terms of reinstatement after a leave of absence, the employee should be offered a position that is equal (in status and pay) to the position she holds now. This means, if she’s actually a full-time employee before her schedule request is granted, she must be given the opportunity to return as a full-time employee after her accommodation is no longer needed. Although granting her the reduced schedule she’s requesting may make her a part-time employee for the time being, this is only temporary.

Remember that California has several kinds of leave available for pregnant employees and this can impact how much time off the employee can receive and how it is taken. These types of leave and the requirements for each are outlined in every custom CEDR Employee Handbook

Make sure that all requests for leave are properly documented for your records. CEDR provides Solution Center members with all the necessary paperwork needed for these situations. We also have a Free Leave of Absence Request Form available for download here.

If you’re a CEDR Member, submit an HR request to ensure your paperwork is in order and to walk through the interactive process with an expert advisor.

If you’re not a member, you can get answers to your HR questions in our private, professional Facebook Group HR Base Camp or set up a time to talk to us about membership here.
 
Not a CEDR Member? Get additional guidance and updates in our private Facebook Group. Click to join!

Apr 4, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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