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Communication matters. Yet, employers and supervisors may not be aware of the many ways communications with employees can run afoul of various employment laws. Application Process The 2021 "ban-the-box" law limits information about criminal history in the application phase (with some exceptions). Although you can request this information during an interview or once the applicant has been deemed qualified for the position, ask your- self whether it is wise to do so. If the explanation includes medical or substance abuse history, you now have information that could expose you to a discrimination claim if the applicant is not hired. A better option may be to wait until after a conditional job offer has been made to request that information. Social media With a few exceptions, you are not permitted to require or even en- courage access to personal social media for applicants (or employees). Although you can access public so- cial media during the application process, consider whether to do so. If the applicant has posted personal protected information that you are privy to from viewing the public site and you don't hire, you may find yourself facing a claim of discrimi- natory failure to hire. Track Work Hours It is imperative that you ensure ac- curate records of hours worked by non-exempt employees. If you know an employee is working but not re- porting it, you are responsible for confirming and paying that time. You must be especially vigilant to keep track of time for remote workers, who are often self-governing. Also, never make assumptions about time worked. For instance, automatically subtracting unpaid lunch time without confirming the employee did not work is asking for a lawsuit. Supervisors should be aware of these issues and how to enforce proper reporting. Mandatory Meetings Another issue pertaining to commu- nication with employees involves mandatory employer-sponsored meetings, often called "captive au- dience" meetings. As of 2023, Maine law prohibits employers from taking adverse employment action against an employee because the employee declines to 1) attend or participate in an employer-sponsored meeting or 2) receive or listen to a communication from the employer, if the purpose of the meeting or communication is to express the opinion of the employer about religious or political matters. This law has taken on much more significance lately because of its ref- erence to "political matters". It is important to note that the law does not prohibit communication of information that you are required by law to communicate, among other things. But, be prepared to respond to arguments by employees who object under recent Executive Orders to subject matter discussed during mandatory harassment trainings. FMLA and ADA Both laws limit what medical infor- mation you may have and how you may lawfully obtain it. It is imperative for you and your supervisors to un- derstand these limitations and the proper way to acquire the informa- tion you are permitted to have. The FMLA has medical forms that limit information from providers. The ADA does not have similar forms so use caution in obtaining the information you are lawfully entitled to have to substantiate a disability and assess requests for accommodations. This is one area where supervisors tend to unknowingly cross the line so train- ing is vital. Handbooks and Policies Facially neutral work rules are pre- sumed unlawful if they have a rea- sonable tendency to "chill" employees' exercise of their Section 7 rights. This comes up frequently in the context of policies to enforce confidentiality of various communications (including investigations) as well as discipline for insubordinate behavior. Simply having the standard NLRB disclaimer is not generally sufficient to mitigate this standard. Have handbooks and pol- icies reviewed to ensure compliance and be sure supervisors understand these limitations. Communication matters. In the employment relationship, it is often as much about what you don't say as what you do. Train your supervisors and consult with counsel when unsure. S P O N S O R E D C O N T E N T Dear Employers: Employment Laws Impact What You Can Say And How You Can Say It By Anne-Marie L. Storey Partner at Rudman Winchell Learn more at rudmanwinchell.com

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