We answer your questions about denying vacation, requests for sensitive information, and much more!

Q: Is it acceptable for us to be denying vacation requests?

In general, yes. But you should have—and document—a legitimate business reason for doing so. Denying vacation requests will undoubtedly hurt morale, especially if it happens frequently, and low morale leads to higher rates of turnover.

Discrimination claims are also a risk. Although denying vacation requests for legitimate business reasons will reduce the chance of a discrimination claim, you’ll also want to make sure you’re not denying vacation in a way—even unintentionally—that disproportionately affects employees with the same protected characteristic. For example, if you deny vacation requests from employees in the customer service department—which happens to be mostly women—more than other requests, they might have a gender discrimination claim. We also hear from employers who want to deny vacation requests when the employee is asking for time off for medical procedures or recovery—this clearly raises disability discrimination issues.

The best approach to avoid these types of discrimination claims is to periodically crunch the numbers to see if employees who share a protected characteristic are significantly more likely to have their request denied than others and, if so, adjust your practices accordingly.

When you really must deny a request, do so carefully. It’s important to show empathy in these situations. You never know what someone has going on in their life. Stay focused on the fact that rejecting their request isn’t something you want to do—it’s something you must do. State the business reason you couldn’t approve the request and work with them to find an alternative time they can take off.

If you find you are regularly denying requests when employees have a vacation planned, we recommend reaching out to an employment law attorney for additional guidance.

Q: A longtime good employee was caught forging his timesheet. We have terminated others for this policy violation in the past. Do I have to terminate this employee as well? His work has always otherwise been excellent, and I don’t want to lose him.

The most risk-averse approach would be to terminate this employee as well. Any time you deviate from consistent disciplinary practices—in this case terminating for forging timesheets—you open your organization up to greater risk of discrimination claims. This employee would no doubt appreciate not losing his job. But former and future employees terminated for this same offense could claim that their termination was discriminatory—that it was based on a protected class or protected activity. Responding to a discrimination claim can be costly, even if you eventually win.

A more risk-tolerant approach would be to document how this situation is different from the others that resulted in termination. For example, this employee may have had consistently good performance while the other dismissed employees did not. If you decide to give this employee a second chance, it’s important to communicate just how serious forging timesheets is and what will happen if he does it again. Document your conversation.

Another risk-tolerant approach would be to change your disciplinary practices. This could entail giving a written warning for the first policy violation and then terminating for the second. If you decide to change your policy or practices around discipline and termination, make sure the changes are documented, clearly communicated to employees, and consistently applied moving forward.

Ultimately, nothing you do can guarantee that an employee won’t call a lawyer, the Equal Employment Opportunity Commission, or some other government agency and claim that their discipline or termination was for an illegal reason. That said, you can take steps to reduce risk. Clear, consistently enforced policies and practices are your best line of defense.

Q: Can we tell employees not to talk about their pay with each other?

Generally not. The National Labor Relations Act (NLRA) grants all non-supervisory employees (not just those in unions) the right to organize and engage in “concerted activity” for the purpose of mutual aid or protection. Concerted means “in concert,” meaning more than one employee is involved. Activities for mutual aid and protection could include discussions about wages, benefits, treatment from managers, safety issues, and just about anything else that two or more employees might have a stake in. As a result, the protections provided by the NLRA are broad. Here are a few examples of protected activity:

• Employees discussing their pay, whether via email, break room chat, or social media
• Individual employees complaining about wages or job conditions if they reflect general discontent or are attempting to get the support of coworkers
• Employees circulating a petition asking for better hours
• Individuals refusing to work in unsafe conditions
• Employees joining with coworkers to talk directly to the employer, to a government agency, or to the media about problems in the workplace

While the NLRA doesn’t protect supervisory employees in this way, employers should be careful about who they classify as supervisory. Only those who have real authority will be exempt from the NLRA’s protections. An assistant manager or shift manager, for example, would in many cases not qualify as supervisory.

A number of states have pay equity or transparency laws protecting employees’ ability to discuss their wages. This even includes those in the C-suite. Under these laws, you wouldn’t be able to enforce wage confidentiality policies, even for supervisors.

Q: An employee is requesting copies of their harassment complaint and investigation files. How should I respond?

It depends. You can certainly share a copy of the original complaint with the person who filed it. You can also tell them about the general results of the investigation. Also, let them know whom they should speak to if the harassment continues.

You shouldn’t hand over investigation notes, witness statements, or other documentation. That information was shared with an expectation of confidentiality (at least whenever possible). Sharing would violate that trust and potentially deter employees from participating in future investigations. Likewise, the employee’s complaint shouldn’t be shared with anyone else. This, of course, includes the accused party. Aside from breaking confidence, it could lead to retaliation.

On a related note, under state law personnel files may have to be provided to employees upon request. So it’s best to keep investigation files separate from personnel files. It’s reasonable to include a copy of the general results of an investigation in the personnel file. However, don’t include any complaints, investigation notes, or witness statements.

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