When it comes to human resources, few answers are truly black and white. “It depends” is often the most accurate—and sometimes the most frustrating—response. Employment law and HR policies exist in a world of nuance, where context, documentation, and practical judgment matter just as much as the rules themselves. In our recent HR Mythbusters presentation, our labor and employment attorneys unpacked some of the most common HR myths and explored why the real answer often lies in the gray areas.
HR Myths span many areas of an HR professional’s daily life, including:
- Wage and Hour
- Employee Discipline and Termination
- ADA/FMLA Leave
- Social Media and Remote Work
- Workplace Investigations and Harassment
- Pay and Benefits
- Documentation and Recordkeeping
Wage & Hour
Myth: “If employees work unapproved overtime, we don’t have to pay them,” or “We’re only liable if we directly ordered the overtime.”
Fact: Eligible employees must be paid for all hours worked—even unauthorized overtime. The Fair Labor Standards Act (FLSA) requires payment for all hours an employee performs work. While the employer may discipline or terminate an employee for violating scheduling instructions, withholding pay is not permitted.
Employee Discipline & Termination
Myth: “At-will employment means we can fire an employee for any reason.”
Fact: Employers cannot terminate an at-will employee for unlawful reasons, such as discrimination, retaliation, or violating contractual promises.
ADA Leave
Myth: “If an employee can do the job without an accommodation, we don’t need to provide one.”
Fact: The Second Circuit recently clarified that an employee may still qualify for reasonable accommodation even if they can perform the essential functions of their job without one. (See Tudor v. Whitehall Central School District, 132 F.4th 242 (2d Cir. 2025).)
FMLA Leave
Myth: “We cannot contact employees who are out on FMLA or sick leave.”
Fact: Employers may contact employees for administrative updates, clarifications, or transitions—but may not require them to perform work while on leave.
Social Media & Remote Work
Myth: “We can prohibit employees from discussing pay on social media.”
Fact: Employees have a protected right to discuss wages and working conditions, even in non-union workplaces.
Workplace Harassment
Myth: “If no one files a formal complaint, we have no duty to investigate.”
Fact: Employers have a duty to act when they know—or should know—of potential harassment. Ignoring informal reports can create liability.
Workplace Investigations
Myth: “Employee work emails are private.”
Fact: Generally, private-sector employees do not have a right to privacy in work emails. Some states, however, require notice before monitoring.
Labor & Union Protected Concerted Activity
Myth: “We’re non-union, so labor laws don’t apply to us.”
Fact: The National Labor Relations Act (NLRA) applies to most private-sector employers, protecting employees’ rights to engage in “protected concerted activity” related to wages, hours, or working conditions.
Pay & Benefits
Myth: “Unused PTO never has to be paid out.”
Fact: It depends. This is governed by your written policy and applicable state law.
Documentation & Recordkeeping
Myth: “If we didn’t document it, we can’t use it in litigation.”
Fact: Not necessarily—but documentation remains your best defense. In litigation, documentation supporting a witness’ testimony may be far more powerful than just the employee’s testimony alone.
These examples highlight just a few of the many “it depends” scenarios HR professionals face. Employment law is layered with nuance, and the right approach often turns on specific facts, timing, and documentation. This list is not all-encompassing and should not be taken as legal advice. If you encounter a situation with employee relations, compliance, or workplace policy concerns, please contact DRM’s Labor & Employment attorneys for guidance tailored to your organization’s needs.
The Labor and Employment Lawyers at Downs Rachlin Martin host a monthly HR Café on the first Wednesday of the month at 8:30am. The excerpt above is from the March 2026 HR Café. If you want to receive invitations for future DRM HR Cafés and are not currently on the list, please click here.
