The Employer's Legal Handbook
Manage Your Employees & Workplace Effectively
The Employer's Legal Handbook
Manage Your Employees & Workplace Effectively
Fred S. Steingold, Attorney
May 2015, 12th Edition
All the laws employers need to know
Employment laws change often. Staying on top of them is essential to running an efficient, fair workplace—and heading off expensive lawsuits. Use this comprehensive guide to find answers to workplace questions, quickly and easily.
The Employer’s Legal Handbook covers all the employment law issues you need to know about, including:
- applications, interviews and hiring
- must-have personnel policies
- wage and hour laws
- employee discipline and performance reviews
- health care and other employee benefits
- employee taxes and payroll
- family and medical leave
- employee privacy
- illegal harassment and discrimination
- downsizing and layoffs
The 12th edition provides updated 50-state legal information and explains the latest developments in employment law, including health care reform.
“Offers a sensible, real life approach to dealing with employees.”-The Wall Street Journal
“Belongs on every business owner’s bookshelf.”-Los Angeles Times
“A comprehensive guide to the legal rights and obligations of employers.”-Detroit News
TABLE OF CONTENTS
- Legal Guidelines for Hiring Employees
- Job Descriptions
- Job Advertisements
- Job Applications
- Making a Job Offer
- Rejecting Applicants
- Tax Compliance
- Immigration Law Requirements
- New Hire Reporting Form
2. Personnel Practices
- Employee Files
- Employee Handbooks
- Employee Performance Reviews
- Disciplining Employees
3. Wages and Hours
- Overtime and Minimum Wage Requirements
- Equal Pay Requirements
- How to Pay Employees
- Calculating Work Hours
- Record-Keeping Requirements
- Child Labor Rules
- Payroll Withholding
- The Consequences of Bending the Rules
4. Employee Benefits
- Health Care Coverage
- Retirement Plans
- Other Employee Benefits
- Benefits for Domestic Partners
- Employer Identification Numbers
- Federal Employment Taxes
- Federal Self-Employment Taxes
- Federal Tax Deductions for Salaries and Other Expenses
- Independent Contractors
- Statutory Employees
6. Family and Medical Leave
- Who Is Covered
- Reasons for Taking a Leave
- Scheduling Leave
- Temporary Transfer to Another Job
- Substituting Paid Leave
- Advance Notice of Leave
- Health Benefits
- Returning to Work
- Related Laws
7. Health and Safety
- The Occupational Safety and Health Act
- Getting Help
- State OSHA Laws
- Hazardous Chemicals
- Workers' Compensation
- Disease Prevention
- Tobacco Smoke
- Drug and Alcohol Abuse
- Repetitive Stress Disorder
8. Illegal Discrimination
- Title VII of the Civil Rights Act
- Genetic Information
- Sexual Orientation
- State and Local Laws
9. Workers With Disabilities
- The Americans with Disabilities Act
- Businesses That Are Covered
- Who Is Protected
- Exceptions to Coverage
- Providing Reasonable Accommodations
- Workers With Emotional or Mental Impairments
- Financial Assistance
- Health and Safety Standards
- Medical Exams
- Wrongful Discharge Cases
- Guarding Against Legal Claims
- Guidelines for Firing Employees
- Investigating Complaints Against Workers
- Alternatives to Firing
- The Firing Process
- Heading Off Trouble
- Final Paychecks
- Continuing Health Insurance
- Unemployment Compensation
- Protecting Your Business Information
- Handling Postemployment Inquiries
11. Employee Privacy
- Monitoring Employees at Work
- Employee Dating
- Other Off-Duty Activities
12. Independent Contractors
- Comparing Employees and Independent Contractors
- The IRS Rules
- Workers Automatically Classified as Employees
- State Laws
- The Risks of Misclassification
- Hiring Independent Contractors
- The National Labor Relations Act
- Unionizing a Workplace
- Employer Rights and Limitations
- Employee Rights and Limitations
- Making Unions Unnecessary
14. Lawyers and Legal Research
- Getting Help From a Lawyer
- Paying a Lawyer
- Resolving Problems With Your Lawyer
- Legal Research
- Labor Departments and Agencies
- State Drug and Alcohol Testing Laws
- State Laws on Employee Arrest and Conviction Records
- State Laws on Access to Personnel Records
- State Minimum Wage Laws for Tipped and Regular Employees
- State Meal and Rest Break Laws
- State Health Insurance Continuation Laws
- State Family and Medical Leave Laws
- State Laws Prohibiting Discrimination in Employment
- Agencies That Enforce Laws Prohibiting Discrimination in Employment
- State Laws That Control Final Paychecks
Many state and federal laws—as well as countless court decisions—set out legal protocol for every phase of the employment relationship, including the hiring process. If you’ve correctly sensed that many workers today are well informed about their legal rights and are willing to fight to enforce them, you may be concerned about making costly mistakes during hiring.
Fortunately, you can steer clear of most of the legal perils of hiring employees by understanding and following these sensible guidelines:
Avoid illegal discrimination.
Respect each applicant’s privacy rights.
Don’t promise job security unless you mean it.
Protect against unfair competition.
Observe the legal rules for hiring young workers and immigrants.
The first part of this chapter discusses these key principles, some of which apply throughout the employment relationship and are discussed elsewhere in this book as well.
The rest of the chapter will explain how to keep legal risks to a minimum as you write job descriptions, advertise for workers, design job applications, interview applicants, check into their backgrounds, and offer them jobs.
Hiring independent contractors? Consult Chapter 12, where you’ll find a detailed discussion of the legal and practical issues you’ll have to consider.
Legal Guidelines for Hiring Employees
Most large companies maintain human resource departments and in-house lawyers to lead them through the intricacies of employment law. If you run a small or midsized company, however, this is an unaffordable luxury. In either case, the guidelines discussed here should reduce your need for outside legal help when hiring employees.
Avoiding Illegal Discrimination
Federal and state laws prohibit all but the smallest employers from discriminating against an employee or applicant because of race, color, gender, religious beliefs, national origin, disability, age, or genetic information. Also, many states and cities have laws prohibiting employment discrimination based on other criteria, such as marital status or sexual orientation.
These antidiscrimination laws—covered in depth in Chapters 8 and 9—apply to all stages of the employment process: preparing job descriptions, writing ads, conducting interviews, deciding whom to hire, setting salaries and job benefits, promoting employees, and disciplining and firing them.
Federal laws apply only to employers who have more than a certain number of employees, which differs for each antidiscrimination law. And many state laws apply to smaller employers who are not covered by the federal laws. To find out whether your business must comply with these laws, see Chapters 8 and 9.
A particular form of discrimination becomes illegal when Congress, a state legislature, or a city council decides that a characteristic—race, for example—bears no legitimate relationship to employment decisions. A law or ordinance is then passed prohibiting workplace discrimination based on that characteristic, making the characteristic protected. Courts get involved, too, by interpreting and applying antidiscrimination laws and ordinances. Obviously, as an employer, you need to know what types of discrimination are illegal.
At the same time, however, antidiscrimination laws don’t dictate whom you must hire. You can exercise discretion based on a wide range of business considerations. You remain free, for example, to hire, promote, discipline, and fire employees and to set their salaries based on their skills, experience, performance, or reliability, or even on your whim. You risk violating antidiscrimination laws only when you treat a person or a group differently for reasons that are based on a protected characteristic.
Some illegal practices are obvious, such as advertising a job for people ages 20 to 30 or paying lower wages to women than men. Other types of discrimination are more subtle, but just as illegal. Employment practices that have a disproportionate and discriminatory impact on protected groups are also barred by antidiscrimination laws. For example, if your primary means of seeking job candidates is through word of mouth and your workforce consists entirely of white men, the word-of-mouth system could constitute illegal discrimination if it results in an applicant pool of mostly white men. The effect of the procedures is what counts, even if you did not intend to discriminate.
To avoid violating antidiscrimination laws at the hiring stage, you should:
advertise job openings in a variety of places so they come to the attention of a pool of applicants
determine which skills, education, and other attributes are truly necessary to perform the job so that you don’t impose job requirements that unnecessarily exclude capable applicants, and
avoid application forms and screening techniques that have an unfair impact on any group of applicants.
Running afoul of antidiscrimination laws can be both time-consuming and costly. An unhappy employee or applicant may sue your business. Federal and state agencies also may take legal action against it. And publicity about a violation of antidiscrimination laws can adversely affect your business reputation, driving down revenues. If word gets out that a company has discriminated against female employees, for example, female customers may avoid dealing with the company long after the discriminatory practices have been dropped.
Respecting Applicants’ Privacy Rights
As an employer, you likely believe that the more information you have about job applicants, the better your hiring decisions will be. But there’s a potential problem in delving too deeply. Your desire to gather information about an applicant can conflict with the applicant’s right to privacy and can sometimes violate federal and state laws.
For example, there are a number of laws that regulate how and when you can request transcripts, credit reports, and other background information. In addition, laws and court rulings restrict your right to screen applicants through aptitude tests and drug tests. We discuss those issues more fully below.
You need to be careful, too, about rejecting applicants because of their off-duty, nonwork activities. It’s easy to understand why you might want to limit your payroll to people who don’t smoke, drink alcohol, or use drugs—even off the job—to hold down health care costs or to keep a harmonious workforce. But the emerging law is that you can’t dictate such off-the-job behavior. Where legal restrictions are in place, screening out applicants based on off-duty conduct can get you into trouble.
Even if you’re in a state where it’s legal to reject applicants based on their lifestyles or their conduct away from work, caution is in order. To be on safe legal ground, it’s best to avoid rejecting an applicant for lifestyle reasons or off-duty conduct unless you have a convincing business purpose. And, even then, be sure to apply your selection criteria evenhandedly.
Because the laws vary depending on which state you are in, it’s best to make sure you’re on solid legal ground before rejecting an applicant based on off-duty conduct or lifestyle unless it is firmly rooted in a business reason.
Avoiding False Job Security Promises
If there’s no contract for a fixed term of employment, an employee works at the will of the employer and employee. The employer can fire the employee at any time—and the employee is free to quit at any time—for any reason or for no reason at all. That’s the basic law, although you can’t fire someone for an illegal reason: because of the color of the employee’s skin, for example, or because you prefer to put a younger person in the job.
The rules are different in Montana. There, an employee is only at will during the “probationary period”: the first six months of the employment relationship, unless the employer specifies a different probationary period while hiring. After the probationary period is over, the employer must have “good cause” to fire the employee, defined as “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.”
The at-will relationship gives you maximum freedom to fire employees, but preserving your legal right to fire at will can be tricky. Courts in many states have held that if employers are not careful about what they tell employees, what they write in employee handbooks, and what they say in documents and letters, they may lose that right. For example:
A law firm hires Joan as a receptionist. The managing partner assures her that she will remain employed as long as she does a good job. Eight months later, Joan is fired. She sues the firm. The judge says that the managing partner’s assurance created a contract that the firm would fire Joan only for a legitimate business reason. The firm doesn’t come up with a good business reason for the firing, so Joan is entitled to damages for breach of contract.
A restaurant hires Scott as its general manager and gives him an employee handbook. The handbook says that the restaurant can fire an employee only after warnings are given and disciplinary procedures are followed. Later, the restaurant fires Scott without warning and without following the disciplinary steps outlined in the handbook. Scott has a solid basis for suing the restaurant for wrongful discharge.
During the hiring process, don’t make promises that you may not be able to honor and that may give an applicant a false sense of security. It can be difficult to restrain yourself when you’re trying hard to entice an attractive candidate to join your workforce. You’ll have a natural tendency to say positive things about your business, the candidate, and the future employment relationship. But those upbeat statements can be turned against you if your promises don’t come true or if the employee is later fired.
Your best protection is to make sure your application forms, employee handbooks, and offers of employment state that the job is at will and to have the applicant acknowledge this in writing. This will protect your right to terminate the employment on your own terms, without legal repercussions. Be aware, however, that some judges approach the whole idea of at-will employment with a measure of hostility or skepticism. These judges may disregard even the most carefully worded at-will language if it seems to be contradicted by other oral or written statements you’ve made to the applicant or new employee.
Here’s an example of language you may wish to include in your job application form.
At-Will Employment. I acknowledge that if hired, I will be an at-will employee, subject to dismissal or discipline without notice or cause, at the discretion of the employer.I also understand that this means I am free to quit my employment at any time, for any reason, without notice. I understand that no representative of the company, other than the president, has authority to change the terms of the at-will relationship and that any such change can occur only in a written employment contract.
Another way to protect yourself is to make sure that you always have a good business-related reason for firing an employee. In legal parlance, this is called firing “for cause.” If you fire for cause, the firing will be lawful, even if a court later finds that the employee was not an at-will employee after all.
Truth in Hiring
Statements you make while interviewing and making job offers may later be treated as binding contracts.
In a leading case, a New York law firm recruited a lawyer who was beginning to make a name for herself in environmental law.The carrot that was dangled in front of her was that she’d head an environmental law department that the firm was starting. She took the bait, but wound up being assigned to general litigation work instead.
Later, when she was fired as part of a cutback, she sued the firm, claiming she’d been damaged because the firm had thwarted her career objective of continuing to specialize in environmental law.The court of appeals held that her claim was valid. (Stewart v. Jackson & Nash, 976 F.2d 86 (2d Cir. 1992).)
The lesson of this and similar cases is that the type of work an employee does can be important.Employees often leave one employer to join another—or turn down opportunities—because a particular job seems to offer a greater chance for career advancement.To avoid claims that you misled an applicant about the nature of the work, stick to what you know the work will consist of rather than what you think the applicant may want to hear.
Similarly, if your company is considering staff reductions in the near future—because, for example, a major account is about to move out of the state—disclose this to applicants. Otherwise, you may find yourself on the defensive end of a lawsuit, especially if the employee left a secure job elsewhere to come work for you.
Consider, for example, the case of Andrew, who held a good job in New York City that paid $120,000 a year. According to Andrew, executives of a Los Angeles company strongly urged him to take a job that they said would be secure and would involve significant pay increases. The executives portrayed the company as financially strong, with a profitable future. Brushing aside Andrew’s request for a written employment contract, they told him, “Our word is our bond.”
That was good enough for Andrew. He quit his New York job, bought a home in California, moved there with his wife and two children, and began working for the L.A. company. Two years later, the company fired Andrew as part of a management reorganization. He sued, claiming that the company fraudulently induced him to give up his old job and move to California. He said that when the company executives induced him to change jobs, they falsely represented the company’s financial condition, concealing the fact that the company’s financial outlook was bleak and that the company was already planning to eliminate the job for which he was being hired. The California Supreme Court held that Andrew could sue for both fraud and breach of contract. (Lazar v. Superior Court (Rykoff-Sexton Inc.), 49 Cal.Rptr.2d 377 (1996).)
Preventing Negligent Hiring Claims
The main reason to investigate an applicant’s background is to make sure the person will do a good job for you and fit in with your other employees. But sometimes there’s an additional, equally powerful reason to conduct a thorough investigation. When you hire someone for a position that may expose customers or others to danger, you must use special care in checking references and other background information.
Legally, you have a duty to protect your customers, clients, visitors, and members of the general public from injury caused by employees whom you know, or should know, pose a risk of harm to others. In some states, you may also have a duty to protect other employees from an employee whom you know—or should know—is dangerous. If someone gets hurt or has property stolen or damaged by an employee whose background you didn’t check carefully, you can be sued for negligent hiring.
Be especially vigilant when hiring maintenance workers and delivery drivers, whose jobs give them easy access to people’s homes.
Example: The Village Green, a 200-unit apartment complex, hires Elton as a maintenance worker and gives him a master key. Elton enters an apartment and sexually molests a young girl while the child’s parents are running an errand. Had the company checked before hiring Elton, it would have discovered that Elton had just completed a prison term for a sexual offense. The child’s parents sue The Village Green for negligent hiring.
Doing a background check can be a delicate matter, because you are also legally required to respect the applicant’s privacy. If you hire people for sensitive jobs, you must investigate their backgrounds as thoroughly as possible, without stepping over the line and violating their privacy rights. You can be faulted for not looking into an applicant’s criminal convictions, but not for failing to learn about prior arrests that didn’t result in convictions, because such arrest records are often protected by privacy laws.
In doing background checks on applicants for sensitive jobs, check for felony convictions. Also, be diligent in contacting all previous employers. Keep a written record of your investigation efforts. Insist that the applicant explain any gaps in employment history. Consider turning over the prehire investigation to professionals who do this for a living. If you choose to follow this route—and can afford it—it can go a long way toward refuting later claims that you failed to use reasonable efforts to learn about the employee’s history.
Strict rules may apply to background checks. Any time you hire a business—such as a credit bureau or investigative agency—to gather information about applicants (or employees), you must follow the strict guidelines set forth in the Fair Credit Reporting Act or FCRA. (15 U.S.C. §§ 1681 and following.) This federal law requires you to, among other things, get the applicant’s consent to the investigation and give the applicant a copy of the investigative report if you decide not to hire the applicant based on its contents.
Protecting Against Unfair Competition
Whenever you hire workers, you run the risk that they’ll later start a competing business or go to work for a competitor. If so, they may use information or contacts they gained at your workplace to draw away business that otherwise would be yours.
Obviously, you don’t need to be too concerned about the employee you hire to flip hamburgers or the clerk you hire to handle dry cleaning orders. But employees who have access to inside information about product pricing or business expansion plans, for example, may pose competitive risks. The same goes for employees who serve valuable and hard-won customers, such as a salesperson who handles a $200,000 account.
You can help protect your business from unfair competition by asking new hires to sign agreements not to take or disclose trade secrets and other confidential information. You can also ask select employees to sign covenants not to compete with your business. Such covenants must be carefully written so that a former employee has a reasonable chance to earn a living, however, and they aren’t legal in all states.
In hiring and working with employees, some business owners need to protect their unique assets from misuse. Some possibly protectable business assets may include, for example:
a restaurant’s recipes for a special salad dressing and a muffin that draw people from miles away
a heating and cooling company’s list of 500 customers for whom it regularly provides maintenance, or
a computer company’s unique process for speedily assembling computer boards.
If they are treated as such, the recipes, the customer list, and the assembly process are all trade secrets. Other examples are an unpatented invention, engineering techniques, cost data, a formula, or a machine. To qualify for trade secret protection, your business information must meet two requirements.
First, you must show that you’ve taken steps to keep the information secret by, for example:
keeping it in a secure place such as a locked cabinet or password-protected database
giving employees access to it on a need-to-know basis only
informing employees that the information is proprietary, and
requiring employees to acknowledge in writing that the information is a trade secret.
Example: Sue works at Speedy Copy Shop. She has daily access to the list of larger accounts that are regularly billed more than $2,000 per month. Sue quits to open her own competing shop. Before she does, she copies the list of major accounts. One of her first steps in getting her new business going is to try to get their business away from her former employer. Speedy sues Sue for stealing its trade secret. At trial, Speedy shows that it keeps the list in a secure place and permits access only to selected employees who need the information. In light of these precautions, the judge orders Sue not to contact the customers on the list and requires her to compensate Speedy for any profits she has already earned on those accounts.
Second, the information must not be freely available from other sources. Trade secrets lose their protected status if they are published or disclosed to the public. For example, if the recipe for a restaurant’s award-winning custard tart can be found in a standard American cookbook or is readily available on the Internet, it’s no longer a trade secret. On the other hand, a publication that is brief, temporary, or obscure will not cause a trade secret to lose its protected status. For example, if the restaurant’s chef found the recipe in a medieval French cookbook in a provincial museum, translated it, and figured out how to adapt it to currently available ingredients, that is probably obscure enough that the trade secret will still be protected.
In addition to the requirements that a trade secret must be guarded information that is not generally available, judges sometimes look at how valuable the information is to you and your competitors and how much money and effort you spent in developing the trade secret.
Covenants Not to Compete
To prevent an employee from competing with you after leaving your workplace, consider having him or her sign a covenant not to compete (also called a noncompete agreement). In a typical noncompete, the employee agrees not to become an owner or employee of a business that competes with yours for a specific time and in a specific location.
The best time to secure a covenant not to compete is when you hire an employee. An employee who is already on the payroll may be more reluctant to sign anything. You’ll also have less leverage to negotiate the agreement.
Not all states honor noncompete agreements. Noncompete agreements can be difficult—or impossible—to enforce. In California, for example, courts virtually never enforce noncompete agreements, and other states enforce noncompetes only in limited circumstances. Even in the states where they are enforced, it’s often hard to overcome a judge’s reluctance to interfere with an employee’s ability to earn a living. One way around this potential uphill battle is to ask employees to sign a nonsolicitation agreement and a nondisclosure agreement. Some courts are more willing to enforce these agreements because they are less restrictive. They can keep ex-employees from using your client or customer lists, luring employees to a competing business, or stealing your trade secrets. If you can get all of these protections, you don’t lose much by forgoing a noncompete agreement.
Battles over the legality of these agreements must usually be resolved in court. Judges are reluctant to deprive people of their rights to earn a living, so the key to a legally enforceable covenant not to compete is to make its terms reasonable. In evaluating whether a covenant not to compete is reasonable, focus on these three questions, each of which relates to the specific job and the specific employee.
Is there a legitimate business reason for restricting the future activities of the particular employee? There probably is if you expect to spend significant time and money training a high-level employee and plan to entrust the employee with sensitive contacts on lucrative accounts. Such an employee could easily—and unfairly—hurt your business by competing with you. This would motivate a judge to find that you have a legitimate business reason for the covenant. On the other hand, if you require a new receptionist or typist to sign a similar covenant, a judge would probably find that you have no valid business purpose for restricting the employee’s ability to work elsewhere.
Is the covenant reasonably limited in time? A one-year limitation may be reasonable for a particular employee. A three-year limit might not be.
Is the covenant reasonably limited as to geographic scope? A 50-mile limit may be reasonable for a particular employee. A limit spanning several states might not be deemed reasonable.
Example: When Mary hires Sid to be the office manager for her profitable travel agency, she realizes that Sid will have access to major corporate accounts and daily contact with the corporate managers who make travel arrangements. Mary also knows that she’ll spend considerable time training Sid and invest more than $4,000 in specialized seminars that she will require Sid to attend. She asks Sid to sign a covenant not to compete in which Sid promises that while working for Mary and for two years afterward, he won’t work for or own a travel agency within 50 miles of Mary’s agency. After six months, Sid quits and starts a competing agency one mile from Mary’s. The judge enforces the covenant not to compete by forbidding Sid from operating his new business and by awarding damages to Mary.
Hiring Young Workers
Federal and state laws restrict your right to hire workers who are younger than 18 years old. These laws limit the type of work for which young people may be hired and the hours they may work. (See Chapter 3 for more information.)
Federal law prohibits hiring workers not authorized to work in the United States. You and each new employee are required to complete Form I-9, Employment Eligibility Verification (discussed below).
Write a job description for each position you’re seeking to fill. Listing the skills and attributes you’re looking for in applicants will make the hiring process more objective. It will also give you ready standards to measure which applicants are most qualified. Current employees can often help you write job descriptions. They know how the business operates and the kind of skills that are needed.
In writing job descriptions, be careful not to violate the laws that prohibit discrimination in employment and that seek to assure employment opportunities for people with disabilities.
Under federal law, you can’t discriminate against applicants on the basis of their race, skin color, gender, religious beliefs, national origin, disability, age (if the applicant is at least 40 years old), pregnancy, or genetic information. In addition, many states prohibit discrimination based on a variety of other characteristics, including marital status and sexual orientation. To learn about laws prohibiting discrimination in employment, see Chapter 8.
A well-drafted job description usually contains these components:
Qualifications, such as necessary skills, education, experience, and licenses. Be careful in setting requirements for education and experience. If set at an unnecessarily high level, your requirements may have an unintended discriminatory effect on groups protected by antidiscrimination laws.
Essential job functions. The federal Americans with Disabilities Act (ADA) has forced employers to take a fresh look at job descriptions and decide what really is the core of each job. (For more on the ADA, see Chapter 9.) To help eliminate unfair discrimination against people with disabilities, the ADA seeks to make sure a person isn’t excluded from a job simply because the individual can’t perform some marginal duties listed in a job description. For example, suppose your job description for a file clerk includes answering the phone, but the basic functions of the job are to file and retrieve written materials. Other employees usually answer the phone. Someone whose hearing is impaired may have trouble handling phone calls but be perfectly able to file and retrieve papers. Phone answering isn’t an essential job function and shouldn’t be listed as such.
Nonessential job functions. You may wish to specify functions and duties that are desirable but not required for a particular job. That’s okay as long as the job description clearly states that these additional functions and duties are not job requirements. Suppose you’re seeking a receptionist. If you never or seldom require the receptionist to type, typing isn’t an essential function. Listing an unnecessary or marginal skill such as typing would unfairly disqualify a person with a paralyzed hand from the receptionist job, for example. You could, however, mention typing as a desirable function if you made it clear that it’s not required.
Want help writing job descriptions? Check out The Job Description Handbook, by Margie Mader-Clark (Nolo), which provides step-by-step instructions for crafting effective job descriptions.
Antidiscrimination laws recognize that in certain very limited circumstances, an employer may have a legitimate reason to seek an employee of a particular gender, religion, or ethnicity, even though such a preference would ordinarily be illegal. These are called bona fide occupational qualification (BFOQ) exceptions. Religion, sex, or national origin can be a BFOQ only if it’s a reasonably necessary qualification for the normal operation of a business or enterprise. Not surprisingly, courts almost never find that the BFOQ exception applies. Race can never be a BFOQ.
Here are some guidelines.
Religion. Religion can be a job requirement if the job involves religious duties. The U.S. Supreme Court has ruled that the First Amendment gives religious entities the right to decide who will “preach their beliefs, teach their faith, and carry out their mission.” This is sometimes referred to as the “ministerial exception” to the usual antidiscrimination rules. Although the usual antidiscrimination rules apply to positions that are not ministerial (such as administrative workers), a religious employer has more freedom in choosing those who will carry and teach its message when it comes to ministerial positions.
National origin. National origin can sometimes, but rarely, be a BFOQ. For example, an American subsidiary of a Japanese company involved in international trade might be allowed to make Japanese nationality a job requirement because of the need for language proficiency, cultural background, and acceptability to trading partners or customers. Aside from such a narrow situation, you can’t use national origin as a BFOQ.
Gender. About the only time that gender can be a BFOQ is for jobs affecting personal privacy—for example, restroom attendants or security guards who are required to search employees—and acting and modeling work.
Even if you write a great job description, you can still get tripped up when summarizing the job in an advertisement, especially if you let someone who’s not familiar with the legal guidelines write your ad. Nuances in an ad can be used as evidence of discrimination against applicants of a particular gender, age, or other protected characteristic.
Here are a number of semantic pitfalls to avoid when posting a job.
General repair person
Requiring a high school or college degree may be discriminatory in some job categories. You can avoid problems by stating that an applicant must have “a degree or equivalent experience.”
The best way to write an ad that meets legal requirements is to keep it short and sweet. Stick to the skills needed and the basic responsibilities the job entails. Some examples:
“Fifty-unit apartment complex seeks experienced manager with general maintenance skills.”
“Midsized manufacturing company has opening for accountant with tax experience to oversee interstate accounts.”
“Cook trainee position available in new vegetarian restaurant. Flexible hours.”
Help wanted ads placed by federal contractors must state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. Ads often express this with the phrase “An Equal Opportunity Employer” or “EOE.”
Some employers who are not federal contractors also use this phrase in their ads; it’s a good shorthand way to let potential employees know that you’ll give them a fair shake, which can help you attract a more diverse group of applicants.
Develop a standard application form to make it easy to compare the experience and skills of applicants. Limit the form to job-related information that will help you decide who’s the best person for the job. Questions like these are fairly standard:
What is your name, address, and phone number?
Are you legally entitled to work in the United States?
What position are you applying for?
What other positions would you like to be considered for?
If you are hired, when can you start work?
What is your educational background, including high school, college, graduate school, and other (including school names, addresses, number of years attended, degree, and major)?
Describe your employment history, including name, address, and phone number of each employer, supervisor’s name, date of employment, job title and responsibilities, and reason for leaving.
Do you have any special training or experience relevant to this position?
Avoiding Unlawful Questions
The chart below outlines the type of information that you can ask for in applications and during job interviews. Follow the chart to comply with federal laws. The chart may also be sufficient for complying with the laws of your state, but to be sure, check with your state’s fair employment office. (You can find charts listing state fair employment laws and offices in the appendix.)
In addition to the areas covered in the chart, the ADA prohibits any preemployment questions about a disability. Before you make a job offer, you may ask questions about an applicant’s ability to perform specific job functions. You may not, however, inquire about the nature or severity of a disability, ask about medical history or treatment, or require any medical exam. These rules apply to application forms, job interviews, and background or reference checks. See Chapter 9 for more on the ADA.
After you make a conditional job offer and before an applicant starts work, you’re free to gather more details. At that point, you can require a medical exam or ask health-related questions, but only if you require this for all candidates who receive conditional offers in the same job category.
Below are some examples of questions, developed by the U.S. Equal Employment Opportunity Commission or EEOC (the government agency that enforces federal workplace discrimination laws), that employers may not ask on application forms or in job interviews as prohibited by the ADA:
Have you ever had or been treated for any of the following conditions or diseases (followed by a checklist of various conditions and diseases)?
List any conditions or diseases for which you have been treated in the past three years.
Have you ever been hospitalized? If so, for what condition?
Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?
Have you ever been treated for any mental condition?
Is there any health-related reason you may not be able to perform the job for which you are applying?
Have you had a major illness in the last five years?
How many days were you absent from work because of illness last year? (You may provide information on your attendance requirements and ask if the applicant will be able to meet those requirements.)
Do you have any physical defects that preclude you from performing certain kinds of work?
Do you have any disabilities or impairments that may affect your performance in the position you are applying for? (It’s okay to ask about the applicant’s ability to perform specific job functions, with or without a reasonable accommodation; see Chapter 9.)
Are you taking any prescribed drugs?
Are you a drug addict or an alcoholic?
Have you ever been treated for drug addiction or alcoholism?
Have you ever filed for workers’ compensation insurance?
Lawful Preemployment Inquiries
Unlawful Preemployment Inquiries
Applicant’s full name
Have you ever worked for this company under a different name?
Is any additional information relative to a different name necessary to check work record? If yes, explain.
Original name of an applicant whose name has been changed by court order or otherwise
Applicant’s maiden name
Address or duration of residence
How long have you been a resident of this state or city?
Do you rent or own?
Birthplace of applicant
Birthplace of applicant’s parents, spouse, or other close relatives
Requirements that applicant submit birth certificate, naturalization, or baptismal record
Are you 18 years old or older? (This question may be asked only for the purpose of determining whether applicants are of legal age for employment.)
How old are you? What is your date of birth?
Religion or creed
Inquiry into an applicant’s religious denomination, religious affiliations, church, parish, pastor, or religious holidays observed
Race or color
Complexion or color of skin
Inquiry regarding applicant’s race
Any requirement for a photograph prior to hire
Inquiry regarding applicant’s height (unless you have a legitimate business reason)
Inquiry regarding applicant’s weight (unless you have a legitimate business reason)
Is your spouse employed by this employer?
Requirement that an applicant provide any information regarding marital status or children
Are you single or married? Do you have any children? Is your spouse employed? What is your spouse’s name?
Mr., Miss, Mrs., Ms. or an inquiry regarding gender; inquiry as to ability or plans to reproduce or advocacy of any form of birth control
These [provide applicant with list] are the essential functions of the job. How would you perform them?
Inquiries regarding an individual’s physical or mental condition that are not directly related to the requirements of a specific job
Are you legally authorized to work in the United States on a full-time basis?
Questions about subjects below are unlawful, but the applicant may be required to reveal some of this information as part of the federal I-9 process:
country of citizenship
whether an applicant is naturalized or a native-born citizen; the date when the applicant acquired citizenship
requirement that an applicant produce naturalization papers or first papers
whether applicant’s parents or spouse are naturalized or native-born citizens of the United States, and, if so, the date when such parent or spouse acquired citizenship
Inquiry into language applicant speaks and writes fluently
Inquiry into applicant’s lineage, ancestry, national origin, descent, parentage, or nationality, unless part of the federal I-9 process in determining employment eligibility
Nationality of applicant’s parents or spouse
Inquiry into how applicant acquired ability to read, write, or speak a foreign language
Inquiry into the academic, vocational, or professional education of an applicant and public and private schools attended
Inquiry into work experience
Inquiry into countries applicant has visited
Have you ever been convicted of a crime (depending on state and local law)?
Are there any felony charges pending against you?
Inquiry regarding arrests that did not result in conviction (except for law enforcement agencies)
Names of applicant’s relatives already employed by this company
Address of any relative of applicant, other than address (within the United States) of applicant’s father and mother, husband or wife, and minor dependent children
Notice in case of emergency
Name and address of person to be notified in case of accident or emergency
Name and address of nearest relative to be notified in case of accident or emergency
Inquiry into the organizations of which an applicant is a member, excluding organizations the name or character of which indicates the race, color, religion, national origin, or ancestry of its members
List all clubs, societies, and lodges to which the applicant belongs
Inquiries about financial problems, such as garnishment or bankruptcy
The Legal Effect of Job Applications
A well-written application form can help get the employment relationship off on solid legal footing. Because it’s filled out very early in the process, you can use the form to let the applicant know the basic terms and conditions of the job and the workplace. And, because the applicant signs the application, it can be a valuable piece of evidence if a question comes up later about what you actually promised about the job.
You can also use the job application to obtain the employee’s consent to a background investigation and reference check. If the applicant consents to your investigation, the applicant will have a tough time later claiming an invasion of privacy. Indeed, if you plan to hire another person or agency to conduct a background check, you will be legally required to get the applicant’s consent first.
Impress on the applicant the need to be honest and accurate in completing the form. Lying or giving incomplete information on an application can be a good legal reason to fire an employee if the correct story later surfaces. So serious is application fraud—or résumé fraud as it’s sometimes called—that some courts have allowed employers to use it to justify a firing even if they didn’t know of the fraud until the employee was gone.
Example: Dolores, age 42, applies for a job as a land surveyor with Progressive Engineering Consultants (PEC). On her application, Dolores states that she has a civil engineering degree from a prestigious college and is licensed by the state. The application form warns that false information will be a cause for immediate discharge. Relying on the application, PEC hires Dolores. Six months later, PEC becomes dissatisfied with Dolores’s work and fires her, replacing her with a 30-year-old man. Dolores sues, claiming that the firm discriminated against her based on age and gender. PEC belatedly looks into her application statements and discovers that Dolores has neither the degree nor the license she said she had. Because of Dolores’s lies, the judge dismisses the case without getting into the discrimination charges.
Including the following language in an application form can help you establish that you clearly told the applicant about the consequences of lying.
Accuracy. I verify that the statements I have made in this application are true and complete.I understand that if I am hired, any false or incomplete statements in this application will be grounds for immediate discharge.
Before you begin interviewing applicants for a job opening, write down a set of questions focusing on the job duties and the applicant’s skills and experience. Some examples:
“Tell me about your experience running a mailroom.”
“How much experience did you have making cold calls on your last job?”
“Explain how you typically go about organizing your workday.”
“Have any of your jobs required strong leadership skills?”
By writing down the questions and sticking to the same format in all interviews for the position, you reduce the risk that a rejected applicant will later complain about unequal treatment. It’s also smart to summarize the applicant’s answers for your files, but don’t get so involved in documenting the interview that you forget to listen closely to the applicant. And don’t be so locked in to your list of questions that you don’t follow up on something significant that an applicant has said or try to pin down an ambiguous or evasive response.
Get the interview started by giving the applicant some information about the job: the duties, hours, pay range, benefits, and career opportunities. This will give the applicant a chance to get comfortable before you start in on the questions. Questions about the applicant’s work history and experience that may be relevant to the job opening are always appropriate. But don’t encourage the employee to divulge the trade secrets of a present or former employer, especially a competitor. That can lead to a lawsuit. And be cautious about an employee who volunteers such information or promises to bring secrets to the new position; such an employee will probably play fast and loose with your own company’s secrets, given the chance.
Keep your antennae tuned carefully to the applicant who spouts a litany of complaints against former employers. If you hire that person, your business may well become the next object of the applicant’s invective. But watch your step if you learn that the applicant has sued a former employer for discrimination or filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). If you refuse to hire the applicant because of the prior proceedings, the EEOC may treat your refusal as a form of illegal retaliation, even though your business wasn’t involved in the earlier problem. See Chapter 8 for more on retaliation claims.
Give applicants plenty of time to answer questions. Make sure they understand your questions; ask them to let you know if something is unclear. Also ask them if they have any questions about your company or the job for which they’re applying. Finally, let them know your time frame for getting back to them with a hiring decision so they won’t bug you with premature phone calls.
Want additional suggestions on interviewing? See 267 Hire Tough Proven Interview Questions, by Mel Kleiman (HTG Press), and The Manager’s Book of Questions: 1001 Great Interview Questions for Hiring the Best Person, by John Kador (McGraw Hill). In addition, Nolo’s Dealing With Problem Employees, by Amy DelPo and Lisa Guerin, devotes an entire chapter to the hiring process, including effective interviewing techniques.
Legal Restrictions on Questions
The rules of etiquette once dictated that you avoid discussing sex, religion, or politics in a social setting. While that standard has been relaxed, it still applies to job interviews, along with similar cautions to avoid focusing on an applicant’s age, ethnicity, birthplace, or personal finances. In fact, such inquiries are not only bad manners; they may be illegal, plain and simple.
Review the legal restrictions on what you can and can’t ask in a job application. (See “Job Applications,” above.) The same guidelines and restrictions apply to interviews. As with job applications, the focus of your interviews should be to find the best person for the job based on skill, experience, education, and other relevant qualifications.
To avoid improper inquiries, stay focused on job requirements and company policies. Suppose you’re concerned that an applicant with young kids may spend too much time talking with them on the phone. You can’t ask: “Do you have children?” or “Who watches the kids when you’re at work?” But you can say to the applicant: “We don’t allow personal phone calls during work hours. Do you have a problem with that?” The applicant then knows the ground rules and can let you know if a problem exists. Just be sure you apply your phone policy to all employees.
During an interview, you can ask about the applicant’s ability to perform job tasks and about any needed accommodation. You’ll be walking a fine line here, so make sure to avoid potential legal problems with disability laws. Remember to focus on the applicant’s ability to do the job, not on the applicant’s disability.
Example: Zack, who has only one arm, applies at ABC Industries for a job that requires driving. The interviewer avoids asking Zack if or how this disability would affect his driving. Instead, to comply with the law, the interviewer asks: “Do you have a valid driver’s license?” and “Can you drive on frequent long distance trips, with or without an accommodation?” The interviewer continues: “At least 80% of the time of this sales job must be spent on the road covering a three-state territory. What is your outside selling experience? What is your accident record?” All are permissible questions.
You can describe or demonstrate the specific job tasks, then ask whether the applicant can perform these tasks with or without an accommodation. If you’re interviewing an applicant for a mailroom job, you can say: “The person in this job is responsible for receiving incoming mail and packages, sorting the mail, and taking it in a cart to many offices in two buildings, one block apart. The mail clerk must also receive boxes of supplies weighing up to 50 pounds and place them on storage shelves six feet high. Can you perform these tasks with or without an accommodation?”
You can ask applicants to describe or show how they will perform specific job functions, but only if you require this of everyone applying for a job in this category. For example, a telemarketing firm could require all applicants to demonstrate selling ability by taking a simulated telephone sales test.
Be mindful that some applicants with disabilities will need accommodations to participate in the interview process. For example, you may need to provide an accessible location for an applicant in a wheelchair, a sign interpreter for a deaf person, or a reader for a blind person. (See Chapter 9 for an extensive discussion of the disability law requirements.)
Preemployment testing—which might include skills testing, aptitude testing, honesty testing, medical testing, and drug testing—is most common in larger businesses. But no matter what size your business is, you should know the legal limits on your ability to test applicants.
Most small businesses—especially new ones—operate on a slim profit margin. This means that your employees must be up to speed from day one. If you’re hiring a data input clerk, you may want to test the applicant for typing speed and accuracy. If you’re hiring a person to be a clerk in your bookstore, you may want to test the applicant’s knowledge of literature. If you’re hiring a driver for a delivery van, a road test would be appropriate. As long as the skills you’re testing are genuinely related to the job duties, a skills test is generally legal.
To avoid discriminating against applicants protected by the ADA, be sure your tests measure the actual skills and abilities needed to do a job. (For more on the ADA, see Chapter 9.)
Aptitude and Psychological Tests
Some employers use written tests—usually multiple choice tests—to get additional insight into applicants’ abilities. Others attempt to probe the psyche of their applicants.
These tests are going out of fashion and for good reason. A multiple-choice aptitude test may discriminate illegally against minority applicants, because it really reflects test-taking ability rather than actual job skills. A personality test can be even riskier. Besides its potential for illegal discrimination, such a test may invade an applicant’s privacy (by inquiring, for example, into religious beliefs or sexual practices).
If you do decide to use aptitude or personality tests, proceed cautiously. Make sure that the tests have been screened scientifically for validity and that they are correlated to job performance. Review them carefully for any questions that may intrude into the applicant’s privacy.
Another concern for employers is the ADA, which lets you give a psychological test or exam to a job applicant only if the test or exam isn’t medical. This can be tricky. A psychological test or exam is considered medical if it provides evidence that can help identify a mental disorder or impairment. A test or exam is permissible if it measures only such things as honesty, tastes, and habits. But if it helps identify whether the applicant has excessive anxiety, depression, or a compulsive disorder, it qualifies as a medical test and is illegal if given at the wrong time.
Be aware, too, that the ADA sets special requirements when you test people who have impaired sensory, speaking, or manual skills. Sensory skills include the abilities to hear, to see, and to process information. If applicants wouldn’t have to use the impaired skill on the job, you must design your tests so that they don’t have to use the impaired skill to take the test.
Example: Joe is applying for a position as a food handler, a job that does not require reading. Because of dyslexia, Joe has a very difficult time reading. He should be given an oral rather than a written aptitude test. By contrast, if you were interviewing Joe for a proofreader job—which clearly requires the ability to read without help—a written test would be appropriate and legal.
Want more on how to avoid legal problems when using screening tests? Check out the EEOC’s guidance on employment tests and selection procedures. You can find it at www.eeoc.gov/policy/docs/factemployment_procedures.html.
Lie detector or polygraph tests—rarely used by small businesses—are virtually outlawed by the federal Employee Polygraph Protection Act. With just a few exceptions, you can’t require job applicants to take lie detector tests and you can’t inquire about previous tests. The only private employers who can use lie detector tests to screen applicants are businesses that offer armored car, alarm, and guard services or that manufacture, distribute, or dispense pharmaceuticals. Even in those situations, there are restrictions on which applicants can be tested and how the tests must be administered.
About the only time a typical employer can use a lie detector test is to question an employee who is reasonably suspected of being involved in a workplace theft or embezzlement.
You must post a notice of the Employee Polygraph Protection Act where employees and job applicants can readily see it. For a poster containing the required notice, contact the local office of the Wage and Hour Division of the U.S. Department of Labor. (See the appendix for contact details.)
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