What Employers Can and Cannot Ask Employees During the Employment Relationship

The employment relationship in Massachusetts is governed by various state and federal laws that dictate what employers can and cannot ask throughout the employment life cycle. These laws are intended to prevent discrimination and protect employees’ rights. Among these laws are the Fair Labor Standards Act, National Labor Relations Act, the Family Medical Leave Act, Title VII of the Civil Rights Acts, the Americans with Disabilities Act, the Massachusetts Equal Pay Act, Paid Family and Medical Leave Act and Massachusetts Anti-Discrimination laws pursuant to Massachusetts General Laws chapter 151B. This article will explore the questions employers can and cannot ask during the employment relationship.

The Pre-Employment Phase

The pre-employment phase of the employment relationship includes the job-posting, interview process, and offer of employment. Massachusetts and federal law prohibit discrimination based on race, color, religion, national origin, sex, disability and sexual orientation.

• Employers should avoid questions regarding a candidate’s marital status, age, religious belief or questions that elicit information about a candidate’s handicap, disability or membership in a protected class.
• Employers should focus their inquiries on the candidate’s ability to perform the essential functions of the position.
• It is advisable that employers develop written job descriptions that detail regularly performed and periodic duties, minimum qualifications, performance standards, and working conditions as courts and agencies will generally look at the job description to determine if a function is essential.
• Employers can ask questions that focus on the candidate’s qualifications, certifications, training, experience, performance and tools necessary to succeed in the position.

The Employment Phase

After a candidate is hired, employers maintain a legitimate interest in obtaining information as it relates to an employee’s job performance and compliance with workplace policies.

• Employers are permitted to ask employees questions about attendance, performance reviews and adherence to workplace policies. It should be noted that workplace policies need to be tailored to focus on employee conduct and performance.
• Employers cannot require an employee to be bound by a policy that limits their ability to discuss the terms and conditions of their employment.
• Employers are permitted to ask that employees adhere to confidentiality and non-disclosure restrictions. However, these confidentiality and non-disclosure restrictions should be narrowly tailored to protect legitimate business interests such as trade secrets, client lists, or other proprietary information.

Medical or disability issues may arise during an employee’s tenure. The Massachusetts Paid Family Medical Leave Act and the Family and Medical Leave Act protect employees from discrimination based on medical history or disability.

• Employers may ask for information that supports a disability-related accommodation request, including requesting a doctor’s note.
• Employers may ask an employee whether the accommodation will allow the employee to perform the essential functions of the position.
• Employers cannot require an employee to accept an unwanted accommodation.

The Post-Employment Phase

Upon termination, employers may perform an exit interview with the employee to probe an employee’s concerns regarding the work environment.

• Employers should ensure that inquiries do not lead to discriminatory action or retaliation against the employee for exercising their rights.
• Employers are permitted to ask the employee about their new employment to assess for a potential violation of a non-compete agreement.
• Employers may request that employees certify that they are not taking confidential and proprietary information with them to their new place of employment.

In conclusion, the inquiries that employers can make during the life cycle of an employment relationship in Massachusetts are governed by laws aimed at preventing discrimination and protecting employees’ rights. Understanding these boundaries protects the rights of the employees but also safeguards employers from legal repercussions.