Embed Size (px)
Citation preview
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
Copyright 2005
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
Copyright 2005
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
Copyright 2005
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
