Copyright 2005 MANAGE YOUR RISK! What You Should Know Before You Hire Mary Elizabeth Davis

Copyright 2005

MANAGE YOUR RISK!What You Should Know Before You Hire

Mary Elizabeth Davis

TOP 10 LIST10. Know when to respect your employees’

privacy and when to alert them that no expectation of privacy exists

9. Know your obligations under the Fair Credit Reporting Act

8. Know what constitutes a medical examination

7. Know when you may require an employee to submit to a medical examination

6. Know what you plan to ask each applicant in an interview before you ask it

TOP 10 LIST 5. Know how to draft an employment application

which will limit your liability

4. Know that your job application will not be Exhibit A in a discrimination trial

3. Know the limits of advertising and advertise for the job to be filled

2. Know the description of the job to be filled

1. KNOW THE LAW!

Copyright 2005

1. KNOW THE LAW!

Primary Employment Laws

The Civil Rights Act of 1964 (Title VII) The Americans with Disabilities Act The Age Discrimination in Employment Act Virginia Human Rights Act

Penalties for Violation Discrimination Laws

Lawsuits costly to defend and even more costly to lose

Monetary relief courts may award back pay front pay attorneys' fees, expert witness fees, and court costs compensatory damages punitive damages

Penalties Cont. Nonmonetary relief courts may award:

hiring promotion reinstatement reasonable accommodation notices to all employees addressing the violations

and advising of employee rights corrective / preventive actions to cure the source of

discrimination and minimize the chance of recurrence

The Civil Rights Act of 1964 (Title VII)

Prohibits employment discrimination on the basis of: Race/Color Religion National origin Sex

Prohibits retaliation against an individual for: opposing employment practices that discriminate filing a discrimination charge Testifying/participating in litigation, investigation,

The Civil Rights Act of 1964 (Title VII) Cont.

Applies to employers with 15 or more employees

Enforced by EEOC Prohibits both intentional discrimination and

neutral job policies that disproportionately discriminate against protected classes and that are not job related

Title VII - Race/Color Title VII prohibits intentional discrimination

and neutral employer policies that disproportionately exclude minorities and are not job related

Title VII also makes illegal employment decisions based on: Stereotypes Assumptions about abilities Physical traits

Employment cannot be denied because of marriage to or association with: individual of a different race membership in or association with ethnic

based organizations or groups, or attendance or participation in schools or

places of worship generally associated with certain minority groups

Title VII - Race/Color

Title VII - Race/ColorExamples of Violations

Discrimination on the basis of: Physical characteristics

• skin color • hair texture • facial features

conditions that predominantly affect one race• sickle cell anemia• no beard policy

Title VII - Race/ColorExamples of Violations Cont.

Harassment on the basis of race/color ethnic slurs racial "jokes" offensive or derogatory comments

Title VII - Race/ColorExamples of Violations Cont.

Segregation and Classification of Employees: physically isolating minority group from

other employees/customer contact assigning minority group to minority

geographic areas

Title VII - Race/ColorExamples of Violations Cont.

Retaliation: opposing discriminatory employment

practices testifying, or participating in investigation,

proceeding, or litigation under Title VII       filing a discrimination charge

Title VII – Religion Title VII prohibits employers from

discriminating against individuals because of their religion in: hiring firing other terms and conditions of employment

• promotion• more work requirements• different work requirements

Title VII – Religion Cont.

Forced Participation Prohibited: Employees cannot be forced to participate in

a religious activity as a condition of employment

Employees cannot be forced NOT to participate in a religious activity as a condition of employment

Title VII – Religion Reasonable Accomodation Required

Employers must reasonably accommodate employees' sincerely held religious beliefs/practices. Examples: flexible scheduling voluntary substitutions or swaps job reassignments lateral transfers modifying workplace practices, policies,

procedures

Title VII – Religion Reasonable Accomodation Required

Reasonable accomodation not required if doing so would impose an “undue hardship” on the employer. Examples: more than ordinary administrative costs diminishes efficiency in other jobs infringes on other employees' job rights or

benefits impairs workplace safety

Title VII – Religion Reasonable Accomodation Required

causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or

proposed accommodation conflicts with another law or regulation

Title VII - National Origin

No one can be denied an employment opportunity because his or her: birthplace ancestry culture linguistic characteristics common to a

specific ethnic group marriage or association with persons of a

national origin group

Title VII - National Origin Cont.

membership or association with specific ethnic promotion groups

attendance or participation in schools churches, temples, or mosques generally associated with a national origin group

surname associated with a national origin group

Title VII - National OriginHarassment

Harassment: Title VII prohibits offensive conduct, such as

ethnic slurs which create a hostile work environment based on national origin

Employers are required to take appropriate steps to prevent and correct unlawful harassment

Employees are responsible for reporting harassment at an early stage to prevent its escalation

Title VII - National Origin Language

Language: Accent discrimination. An employer may

not base a decision on an employee's foreign accent unless the accent materially interferes with job performance

English fluency. A fluency requirement is only permissible if required for the effective performance of the position for which it is imposed

Title VII - National Origin Language Cont.

English-only rules: English-only rules must be adopted for

nondiscriminatory reasons An English-only rule may be used if it is

needed to promote the safe or efficient operation of the employer's business

Title VII – Sex Prohibits discrimination of any employee/applicant because of

his/her sex in regard to hiring termination promotion compensation job training any other term, condition, or privilege of employment

Prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of sex

Title VII – Sex Cont. Title VII's prohibitions against sex-based

discrimination also cover: sexual harassment pregnancy based discrimination equal pay

Sexual Harassment spans from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment

Title VII – Sex Cont.

Pregnancy Based Discrimination: employers cannot refuse to hire a woman because she is pregnant or suffers from a related condition as long as she can perform the major functions of her job

Equal Pay: compensation discrimination on the basis of sex is prohibited

The Americans with Disabilities Act

ADA prohibits discrimination against qualified individuals with disabilities in employment.

ADA covers employers with 15 or more employees ADA requires non-discriminatory:

application procedures qualification standards selection criteria Employers to be non-discriminatory in all other

terms and conditions of employment

The Americans with Disabilities Act

Requires employers to make reasonable accommodations to the known limitations of a qualified applicant or employee unless to do so would cause an undue hardship.

The Americans with Disabilities Act Conditions held to be disabilities:

AIDS Alcoholism Arthritis Asthma Back problems Bronchitis Chronic fatigue immune

dysfunction syndrome

Crohn’s disease Manic depression Mental disability Obesity (verses being

overweight ) Sleep apnea

The Americans with Disabilities Act Conditions held NOT to be disabilities: Acrophobia (fear of

heights) Allergy to fungus Sensitivity to chemicals Depression (in certain

cases) Dust allergy

Heroin addiction Homosexuality Knee injury Left-handedness Vision, slight problem

(corrected eye 20/60)

The Americans with Disabilities ActExceptions

The ADA makes exceptions regarding the employment of the following: a person with a contagious disease, a person who illegally uses drugs or

alcohol, employment of someone by a religious

entity, and private membership clubs.

The Age Discrimination in Employment Act

The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age

The ADEA's protections apply to both employees and job applicants

Covered Employers: The ADEA applies to employers with 20 or more employees

The Age Discrimination in Employment Act Cont.

ADEA Protections Include: Apprenticeship Programs: May not set age

limitation for participation Job Notices and Advertisements: It is

generally unlawful to include age preferences, limitations, or specifications in job notices or advertisements

The Age Discrimination in Employment Act Cont.

Pre-Employment Inquiries: The ADEA does not specifically prohibit an

employer from asking an applicant's age or date of birth

However, such request are not suggested

Virginia Human Rights Act Prohibits unlawful discrimination in employment

because of: race/color religion national origin sex pregnancy childbirth or related medical condition age marital status disability

Copyright 2005

2. Know the Description of the Job to be Filled

Job Descriptions Describe the major areas of an employee's position Should identify the essential functions of the job Set out individual tasks involved List methods used to complete the tasks State purpose and responsibilities of the job Describe the relationship of the job to other jobs Identify qualifications needed for the job

Importance of Job Description with Respect to the ADA

No discrimination exists where applicant with a disability is not hired if the applicant cannot perform the essential functions of the job with a reasonable accommodation

ADA specifically provides that: ''consideration shall be given to the

employer's judgment as to what functions of a job are essential'' and

Importance of Job Description with Respect to the ADA Cont.

''if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions.''

EEOC regulations also recognize job descriptions as evidence of essential functions of job

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3. Advertise for the Job to be Filled

Help Wanted Advertisements

Newspaper "Help Wanted" pages historically differentiated on the basis of gender and age.

With enactment of Title VII and ADA, gender and age specific advertisements for employment are illegal

Exceptions/Defenses to a Gender or Age Based Advertisement

Bona fide occupational qualification Must be old enough to drive a truck Must be old enough to serve alcohol

Acting pursuant to a bona fide affirmative action plan

Contract Claims

Want ads may support breach of contract claim "permanent replacements" for striking

workers When the strike was settled, replacements

were laid off

Copyright 2005

4. Know that Your Job Application Will Not be “Exhibit A” in a Discrimination Trial

Application vs. Resume

Application Simpler for employer Easier to compare

applicants Avoid volunteer of

improper information Risk: improper

requests

Resume Simpler for employee More difficult to

compare applicants Allows employees to

provide information that would be improper to consider

Application Drafting Tips Do not request an applicant’s age Ask an applicant if he/she is over 18 if being

over 18 is reasonably related to the job request the applicants’ sex (male or female)

and preferred form of address (Mr./Miss/Mrs.) only if the information is sought in good faith and not to discriminate

Avoid pre-employment requests regarding marital status. Marital status is irrelevant to nearly all employment positions

Application Drafting Tips Cont. Employers may only seek information about

citizenship, ability to speak English, or questions about foreign training or education if BFOQ exists

Do not request information about race on application forms

Do not ask applicants whether they have a disability on a job application

Tips For Using Employment Applications To Avoid Liability

True Information: have applicant certify that the applicant has submitted truthful information and acknowledge that any false statement/omissions will warrant immediate discharge

At Will Employment: have the applicant acknowledge that his/her employment is at will

Equal Opportunity Employer: provide a statement on the application that the employer is an equal opportunity employer

Copyright 2005

5. Know How to Draft An Employment Applicant Which Will Limit Your Liability

Tips For Using The Application To Avoid Liability Cont.

Authorization for Background Check: Have applicant authorize the employer to request and obtain a criminal background report for employment purposes

Authorization for Reference Check:  Have the applicant give the prospective employer permission to request and former employers permission to release information regarding past employment

Tips For Using The Application To Avoid Liability Cont.

Conviction Disclosure: If an employer asks an applicant to disclose whether he/she has been convicted of a crime on the employment application, indicate that conviction does not necessarily bar employment

Unsolicited Applications/Inquiries When an employer receives unsolicited

applications, the employer should: return the application to the sender or acknowledge the application, inform the

sender that no position is currently available and destroy the application

Unsolicited Applications/Inquiries

Persons inquiring about job openings where no position is available should be informed that: no position is available and that no consideration will be given to materials

submitted Employers should not promise potential applicants

that resumes submitted will be “kept on file”

Copyright 2005

6. Know what you plan to ask each applicant in an interview before you ask it

Job Interview Goal of Interview?

Learn about/evaluate applicant Make opportunity sound attractive to

applicant Risk Management perspective?

to do nothing that will expose the employer to liability if an applicant sues the employer

Rules For Questioning Applicants During An Interview

Request only information which is related to the job

Ask all applicants the same questions If the applicant volunteers information which

would be illegal to ask for, the employer may not use that information as a basis for rejecting the applicant

Questions Prohibited on Religious Bases

What is your religion?” “Can you work on Fridays, Saturdays or

Sundays?” Comments regarding the religious affiliation

of a school attended by the applicant. Comments on religious jewelry worn by an

applicant.

Questions Prohibited on National Origin Bases

How or where did you learn to speak Spanish? Is Italian your native language? That sounds like an Irish name. Is that your

background? Were your parents born in this country? Your resume says you spent a year in Israel.

Are you Jewish?

Questions Prohibited on the Bases of Sex

Do you have any children?

Do you pay or receive alimony or child support?

Who will take care of your children while you work?

Do you have a family?

Are you gay? Are you living with

someone? Will you leave this job

if your husband is transferred?

Will your husband move if we transfer you?

Prohibited Questions on the Bases of Sex (Pregnancy)

Do you have any children? Are you pregnant? Do you have or plan to have

a family? Do you intend to become

pregnant? Do you anticipate needing

time off to have a baby? How much time would you

expect to take off if you were to have a baby?

What would you do if you were to become pregnant?

Do you practice birth control?

Have you ever had an abortion?

Have you ever had or do you now have any female problems?

Have you ever been pregnant?

Questions Prohibited on the Bases of Age

When did you graduate from college/high school? How old are your children? When were you discharged from the service? Do you get any social security income? Are you receiving pension benefits? Are your parents [grandparents] still living? How far away from retirement are you? How many years do you think you will give to this

job?

Questions Prohibited on the Bases of Disability

Have you ever had or been treated for any of the following conditions or diseases?

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?

Is there any health-related reason why you may not be able to perform the job for which you are applying?

Have you had a major illness in the last 5 years?

Prohibited Disability Questions Cont.

How many days were you absent from work because of illness last year?

Do you have any physical defects that preclude you from performing certain kinds of work? Are you taking any prescribed drugs?

Have you ever been treated for drug abuse/addiction or alcoholism?

Will/do you need reasonable accommodation to perform this job?

Have you ever filed for workers’ compensation insurance?

Permissible Questions Under the ADA

If an individual has a known disability, “How will the job functions will be performed, with or without an accommodation.

“Did you have records of attendance with prior employers?”

“Have you ever used illegal drugs?” An employer may give applicants tests to detect the

illegal use of controlled substances. “Have you ever been arrested for driving under the

influence of alcohol?”

Copyright 2005

7. Know When You May Require an Employee to Submit to a Medical Examination

Tests and Title VII Title VII expressly permits employers to use

employment tests The following techniques of assigning job

suitability may be utilized: formal, scored, qualified or standardized

Tests/qualifying devices that disproportionately screen out members of protected groups are not permitted

“Race norming”/“sex norming” in testing is prohibited

Tests and the ADA

The following are ways to avoid discriminating against applicants with disabilities: Avoid tests that may expose mental, sensory,

manual, or verbal impairments unless the test is attempting to measure job-related skills 

Employers should give tests in a manner that is neutral to disabilities, whenever possible

Specific Types of Tests Skills Tests: such as typing tests, are generally legal

as long as the tests genuinely reflect a skill necessary for performance of a specific job

Aptitude, Psychological, and Personality Tests: use with great caution, as they can leave the employer vulnerable to charges of discrimination Personality tests may invade an applicant’s privacy

by requesting information that is personal Psychological tests, when they educe answers that

are indicative of a mental disorder, qualify as “medical examinations” and are prohibited

Specific Types of Tests Continued

Polygraph Exam: Under the Employee Polygraph Protection Act (EPPA), employers generally may not: Require employees applicants to take polygraph Request employees applicants to take polygraph discharge, discipline, or discriminate against an

employee or job applicant for refusing to take a polygraph test or

discharge, discipline, or discriminate against an employee or job applicant for exercising other rights under the EPPA

Copyright 2005

8. Know What Constitutes a Medical Examination

Medical Examinations

Under the ADA it is unlawful to require an applicant to take a medical examination before making a job offer

Definition of Medical Examination: a procedure or test that seeks information about an individual's physical or mental impairments or health 

Held To Be Medical Exams vision tests conducted and

analyzed by an ophthalmologist or optometrist

blood, urine, and breath analyses to check for alcohol use

blood, urine, saliva, and hair analyses to detect disease or genetic markers

blood pressure screening and cholesterol testing

nerve conduction tests range-of-motion tests that

measure muscle strength and motor function

pulmonary function tests psychological tests that are

designed to identify a mental disorder or impairment

diagnostic procedures such as x-rays, CAT scans, and MRIs

Held Not to Be Medical Exams Tests to determine the current illegal use of drugs Physical agility tests, and physical fitness tests,

which measure an employee's performance of physical tasks

Tests that evaluate an employee's ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions

Psychological tests that measure personality traits such as honesty, preferences and habits

Polygraph examinations

When Medical Examinations Are Permitted

After a job offer is made but prior to the beginning of employment when all entering employees who will be working in the job category must be subject to a similar examination regardless of disability

Employer may condition the job on the results of a medical examination

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9. Know Your Obligations Under the Fair Credit Reporting Act

Credit Checks and Criminal Background Checks

The Fair Credit Reporting Act ("FCRA") legislates for “consumer” reporting

Employers who use third parties or consumer reporting agencies obtain criminal background checks and/or reference checks must comply with the FCRA

Procedures for Properly Ordering and Using Consumer Report

When an employer orders and/or uses a consumer report to take an adverse employment action, the employer should consult legal counsel and must take at least the following steps: Provide a written disclosure before the

report is obtained Obtain written authorization to obtain the

report

Procedures for Properly Ordering and Using Consumer Report Cont.

Provide a Summary of Rights Before taking an adverse employment

action provide the applicant/employee with notice that adverse action may be taken

After waiting a “reasonable time”, provide denial letter to the applicant

Damages for Violations of FCRA

Compensatory damages Court costs and reasonable legal fees Punitive damages Civil penalties if sued by federal agencies or

the state

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10.Know When to Respect Your Employees’ Privacy and When to Alert Them that No Expectation of Privacy Exists

RECORD KEEPING AND PRIVACY

Medical Examinations and Information Relating to Disabilities

Personnel Files The HIPAA Privacy Regulations Monitoring E-Mail and Telephone Electronic Surveillance and Searches

Medical Examinations and Information Relating to Disabilities

Medical/Disability information must be kept confidential

Separate files must be established segregating medical and non-medical information

Medical information should be kept in a private locked filing cabinet

Medical Examinations and Information Relating to Disabilities Cont.

Limit Access to: supervisors who need information regarding

necessary restrictions or reasonable accommodations

first aid and safety personnel who may be informed if the disability would require emergency treatment

government officials investigating compliance with the ADA

Personnel Files

In Virginia, there is no requirement that an employer provide an employee copies of his/her personnel file

The employer can create such an obligation by promises made in employee handbooks

Employers should deny any party, other than the employee, access to employment files without written authorization of the relevant employee, proper subpoena or court order

The HIPAA Privacy Regulations

HIPAA applies to employer-sponsored health plans and regulates the “protected health information” (PHI)

HIPPA provides three core restrictions on uses and disclosures of PHI: use or disclose PHI only for treatment,

payment for health care, and health care operations

The HIPAA Privacy Regulations

All other uses or disclosures of PHI (including use for any employment purposes) require a HIPAA-compliant authorization from the individual; and

When using or disclosing PHI for payment or health care operations, only the “minimum necessary” amount of PHI should be used or disclosed

Monitoring E-Mail and Telephone Federal and State statutes prohibit the interception or

unauthorized access of wire, oral or electronic communications

Several exceptions exists Employer may take advantage of these exceptions by

notifying employees of monitoring of telephone or electronic communications through Published company policies Employee handbooks

Telephone Monitoring Federal law only requires consent of one party

to a communication, which may be implied if there is appropriate notice to employees

Virginia has the same “one party” requirement In several other states, however, an employer

must have consent of both parties before monitoring a telephone call. Dual consent can be achieved through taped messages warning callers that their conversation may be recorded

Electronic Surveillance and Searches

May create common law claims for invasion of privacy

Video surveillance of public work areas generally does not constitute an invasion of privacy, because employees are generally held to have no reasonable expectation of privacy in such areas

Surveillance in non-public areas is more likely to lead to liability for invasion of privacy

Most employers only use video surveillance (without audio) because of additional restrictions and limitations on the use of audio surveillance

Conclusion1. KNOW THE LAW!2. Know the description of the job to be filled 3. Know the limits of advertising and advertise for

the job to be filled4. Know that your job application will not be

Exhibit A in a discrimination trial 5. Know how to draft an employment application

which will limit your liability6. Know what you plan to ask each applicant in an

interview before you ask it

Conclusion

7. Know when you may require an employee to submit to a medical examination

8. Know what constitutes a medical examination

9. Know your obligations under the Fair Credit Reporting Act

10. Know when to respect your employees’ privacy and when to alert them that no expectation of privacy exists

Thank You

If further questions, please call 804-697-2035 or e-mail me at mdavis@spottsfain.com