Examining the legal environment

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CHAPTER 6 Interviewing and Legal Considerations

Pick up a newspaper on any given day and you’re likely to read about the most recent in an ongoing series of employment discrimination settlements. These cases involve all forms of discrimination, including race, religion, sex, and age. For example, in June 2011 the Supreme Court blocked a sex discrimination class action suit against Wal-Mart. The case was considered the largest employment discrimination case in the nation’s history, but the Court ruled unanimously that a class action lawsuit involving more than 1.5 million women could not proceed, reversing a decision by the Ninth Circuit Court of Appeals in San Francisco. While plaintiffs could still pursue individual suits, there would be much less money at stake than the projected billions of dollars.

What does any of this have to do with you personally if you make a concerted effort not to discriminate? The answer is easy, albeit disconcerting: If you’re in HR and anyone in the organization is charged with discrimination, you are certain to be involved in what is often a lengthy legal process. If you’re personally accused of employment discrimination, justly or not, you will find yourself embroiled in each step of the lawsuit. You may even be called upon to provide input if you’re not in HR or personally involved with a particular charge of employment discrimination. That’s because anyone having anything to do with any aspect of the employment process is expected to have a basic knowledge of EEO laws. Unintentional violations due to a lack of knowledge are not excusable.

The information contained in this chapter is current as of this writing and is not intended to represent legal advice. Readers are urged to consult with legal counsel in all equal employment matters.

Employment Legislation

Federal employment laws exist to ensure individuals the right to compete for all work opportunities without bias because of their race, color, religion, sex, national origin, age, or disability. Many state laws extend beyond this coverage to matters such as sexual orientation. Certain aspects of key employment legislation may not appear on the surface to relate directly to interviewing, but a closer examination reveals a correlation with the interviewing process. For example, the Equal Pay Act of 1963 requires equal pay for men and women performing substantially equal work. While this does not relate specifically to determining job suitability, interviewers need to understand the parameters and ramifications of the law to ensure that they are not in violation. This could occur if women are offered lower starting salaries than men based on their respective current rates of pay instead of on the scope of work to be performed or on qualifications.

These laws also protect employees being interviewed for internal promotions or transfers. The following employment laws and categories of discrimination represent major federal

statutes, rules, and regulations. The list is not all-inclusive. Employers are urged to obtain a

Arthur, Diane. Recruiting, Interviewing, Selecting and Orienting New Employees, AMACOM, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/capella/detail.action?docID=931154. Created from capella on 2019-09-30 19:16:38.

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copy of each of these and other laws relevant to their places of business. Unless otherwise noted, copies of the laws may be obtained from:

Equal Employment Opportunity Commission (EEOC) Department of Labor 1801 L Street, NW Washington, D.C. 20507 202/663-4900 http://www.eeoc.gov/

State and local laws may differ and should also be considered. Failure to comply with any of these laws could result in costly litigation.

Civil Rights Act of 1866

Many people are surprised to learn that employment-related laws have been around for nearly 150 years. One of the earliest pieces of legislation was the Civil Rights Act of 1866. The portion most relevant for today’s employers is Section 1981, Title 42, which ensures all people the same “equal rights under the law … as is enjoyed by white citizens …to… make and enforce” contracts.

Essentially, this has been interpreted to mean that discrimination against non-whites in the making of written or implied contracts relevant to hiring and promotions is illegal. This law was originally intended to support charges of race discrimination and was expanded in 1982 to include national origin discrimination. It applies to all employers regardless of the number of employees.

Over the years, this early civil rights act has been a significant weapon against employers in that it permits the plaintiff to seek punitive damages in addition to compensatory damages such as back pay. Moreover, it provides for a jury trial.

While the awards for violation of this act can be substantial, the claimant must establish intent to discriminate on the part of the employer. That is to say, it is necessary to prove that the employer deliberately denied an individual an opportunity for employment or promotion on the basis of his race or national origin. This is to be distinguished from establishing effect, which means that while one or more representatives of an organization did not intend to deny someone equal employment opportunity on the basis of his race or national origin, the effect of a certain employment practice, such as exclusively using employee referrals as a recruitment source, was discriminatory. It is usually more difficult to establish intent to discriminate than it is to show effect.

Civil Rights Act of 1964

This is probably the best-known piece of civil rights legislation and the most widely used, in that it protects several classes of people and pertains to so many employment situations, including interviewing. Title VII of this act prohibits discrimination on the basis of race, color, religion, sex, or national origin in all matters of employment, from recruitment through discharge. Criteria for coverage under Title VII include any company doing business in the

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http://www.eeoc.gov/

United States that has fifteen or more employees. Title VII does not regulate the employment practices of U.S. companies employing American citizens outside the United States. Violations are monitored by the EEOC.

Violators of Title VII are generally required to “make whole,” which includes providing reinstatement, if relevant, and back pay. Jury trials are not allowed.

Plaintiffs in Title VII suits generally need not prove intent; rather, they may challenge apparently neutral employment policies having a discriminatory effect.

Many claimants sue for violations of both Section 1981, Title 42, of the Civil Rights Act of 1866 and Title VII of the Civil Rights Act of 1964.

Equal Pay Act of 1963

The Equal Pay Act of 1963 (EPA) requires equal pay for men and women performing substantially equal work. The work must be of comparable skill, effort, and responsibility, performed under similar working conditions. Coverage applies to all money-related aspects of the employment process including starting salaries, annual increases, and promotions. This law protects women only; men who feel they are being discriminated against in matters of pay may claim violation of Title VII. Criteria for coverage is at least two employees.

Unequal pay for equal work is permitted in certain instances, such as when wage differences are based on superior educational credentials or extensive prior experience. This pay difference, however, should diminish and ultimately disappear after a number of years on the job, assuming job performance supports equivalent pay increases.

Comparable Worth

An important issue related to equal pay is comparable worth. Several states have implemented programs for comparable worth pay whereby employers are required to compare completely different job categories. Those held predominantly by women, such as nurses and secretaries, must be compared with those occupied predominantly by men, such as truck drivers and warehouse workers. Point systems determine the level of skill involved in the job, as well as the economic value of each position. If the classifications dominated by women are deemed comparable to those dominated by men, adjustments are made to reduce the difference in pay.

The important distinction between comparable worth and equal pay is that in order to claim violation of the EPA, identical job classifications must be compared. Therefore, if a woman accountant believes that she is not being offered a rate of pay equal to that of her male counterpart who is performing substantially equal work, she may have sufficient cause to claim violation of the EPA. On the other hand, comparable worth compares different job categories. For example, if a clerk-typist believes that the value of her work is comparable to that of a male custodian hired to work for the same employer, she might sue on the basis of sex discrimination. Since there is currently no federal law that deals specifically with comparable worth, she would sue for violation of Title VII.

Businesses are urged to voluntarily assess their employment practices and work toward minimizing gender-dominated categories.

Age Discrimination in Employment Act of 1967

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The federal Age Discrimination in Employment Act of 1967 (ADEA), as originally written, protected individuals from ages 40 to 65, and then to age 70. A 1978 amendment permitted jury trials, which gave claimants more power. Effective January 1, 1987, Congress unanimously approved, and President Reagan signed into law, H.R. 4154, amending ADEA by extending its protection to those beyond the age of 70. Now, most private sector and federal, state, and local government employees cannot be discriminated against in matters of pay, benefits, or continued employment regardless of how old they may be. The act also pertains to employees of employment agencies and labor organizations, as well as to U.S. citizens working outside the United States.

ADEA contains an exemption for bona fide executives or high-level policy makers who may be retired as early as age 65 if they have been employed at that level for the preceding two years and meet certain criteria, including exercising discretionary powers on a regular basis; having the authority to hire, promote, and terminate employees; and having a primary duty to manage an entire organization, department, or subdivision. Contact the EEOC for detailed guidelines.

The general criterion for coverage under ADEA is employment of at least twenty employees. Part-time employees are included when calculating coverage.

Rehabilitation Act of 1973

Section 501 of this federal law prohibits discrimination against persons with disabilities by contractors doing business with the federal government totaling $2,500 or more per year. Those employers who are government contractors, do business totaling $50,000 or more per year, and have fifty or more employees must prepare an affirmative action plan to comply with the act, although hiring and promotion goals and timetables are not required under this plan. Section 504 requires employers receiving federal financial assistance to take affirmative action in hiring and promoting qualified workers with disabilities.

The act protects “any person who (1) has a physical or mental impairment that substantially limits one or more of the person’s major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment.” Included in this definition are former drug addicts and recovering alcoholics. Current drug or alcohol users are not protected. Individuals with of acquired immune deficiency syndrome (AIDS) and AIDS- related conditions are also covered by this act.

An employer’s obligation extends to making a reasonable effort to accommodate the person’s disability, as long as such accommodation does not create an undue hardship. Undue hardships are determined by considering such factors as the size of the organization, the type of work involved, and the nature and cost of such accommodation. For example, job restructuring might be required if the person with the disability can perform the essential functions of the job, but requires assistance with one remaining aspect of the work, such as heavy lifting. Other aspects of job restructuring may include revised procedures, providing readers or interpreters, or modification of equipment. Any adjustment, including alternations to facilities that do not create an undue hardship, may be required.

Resources that assist in modifying facilities and equipment to accommodate workers with disabilities include the Job Accommodation Network (http://janweb.icdi.wvu.edu/).

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http://janweb.icdi.wvu.edu/

Americans with Disabilities Act of 1990

In July 1990, President George H. W. Bush signed landmark legislation prohibiting all employers, including privately owned businesses and local governments, from discriminating against employees or job applicants with disabilities. Exempt are the federal government, government-owned corporations, Native American tribes, and bona fide tax-exempt private membership clubs. Religious organizations are permitted to give preference to the employment of their own members. The law requires every kind of establishment to be accessible to and usable by persons with disabilities. This legislation, titled the Americans with Disabilities Act of 1990 (ADA), pertains to employers with fifteen or more employees and is monitored by the EEOC.

Under the ADA, the term disability is defined the same as in the Rehabilitation Act of 1973, that is, as a physical or mental impairment that substantially limits an individual’s major life activities. The definition also encompasses the history of an impairment and the perception of having an impairment. Examples of disabilities that are covered include impaired sight and hearing; muscular conditions such as cerebral palsy and muscular dystrophy; diseases like cancer, AIDS, diabetes, and epilepsy; cosmetic disfigurements; emotional disturbances; stuttering; smoke sensitivity; tension; and depression. In fact, there are more than one thousand different impairments that are covered by this act. Current users of illegal drugs or alcohol are not protected by the ADA. Also, people with contagious diseases or those posing a direct threat to the health or safety or others are not covered by this act.

Recently, the EEOC has focused on the issue of discrimination against individuals with intellectual disabilities. This includes people with an IQ below 70 and those with significant limitations in adaptive skills. The EEOC has issued a guide with examples of situations in which such intellectual disabilities are protected by the ADA.

Under the ADA, employers are required to make a “reasonable accommodation” for those applicants or employees able to perform the “essential” functions of the job with reasonable proficiency. Reasonable accommodation includes job restructuring, allowing part-time or modified work schedules, reassignments, hiring additional workers to aid employees with disabilities in the performance of their jobs, and installing new equipment or modifying existing equipment. An accommodation is considered unreasonable only in those instances where undue physical or financial hardship is placed on the employer. Such hardship is determined according to the overall size of an organization in relation to the size of its workforce, its budget, and the nature and cost of the required accommodation.

Essential functions are loosely defined as tasks that are “fundamental and not marginal,” according to the Senate report on the ADA. Employers are encouraged to conduct a detailed review of each job to determine which functions are essential. This should include an assessment of the amount of time devoted to each task.

The ADA also refers to what an employer may require in the way of preemployment physical examinations. According to the act, employers cannot single out individuals with disabilities for medical exams. If they are shown to be job-related and consistent with the requirements of the job, medical exams are permitted after an offer of employment has been made, prior to the start of work. In this instance, an employer may condition an offer of

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employment on the results of the exam.

Pregnancy Discrimination Act of 1978

The Pregnancy Discrimination Act of 1978 (PDA) recognizes pregnancy as a temporary disability and prohibits sex discrimination based on pregnancy, childbirth, or related conditions. Pregnant applicants may not be denied equal employment opportunities if they are able to perform the essential functions of the available job. Likewise, women must be permitted to work as long as they are capable of performing the essential functions of their current job or any job to which they may be promoted or transferred.

If an employer insists on establishing special rules for pregnancy, such rules must be dictated by business necessity or related to issues of health or safety.

Fetal Protection

An important concern related to pregnancy discrimination has to do with fetal protection. Whether an employer may bar women of childbearing age from jobs that involve toxic substances, X-rays, lead exposure, or the like is an issue that has been addressed by the EEOC in a series of fetal protection guidelines. The guidelines require employers to first determine if there is substantial risk of harm to an employee’s potential offspring from exposure to a workplace hazard. To accomplish this, employers should rely on scientific evidence of the risk of fetal or reproductive harm from exposure and the minimum period of time required for exposure to cause harm. Then the employer should assess its policy and determine whether there is a reasonable alternative that would be less discriminatory than exclusion, such as a temporary assignment to another nontoxic job or wearing a personal protection device.

Religious Discrimination Guidelines

The EEOC guidelines define religion and religious practices as “moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views.” In 1972, Congress amended that portion of Title VII pertaining to religion in the workplace by expanding the definition to include an individual’s right to “all aspect of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” This amendment placed the burden on employers to prove their inability to reasonably accommodate an individual’s religious practices.

As with accommodating persons with disabilities, what constitutes an undue hardship depends on a number of factors, including prohibitive cost. Undue hardship must be provable.

Certain work assignments might also require some adjustment if an individual raises religious objections. For example, a foreign work assignment to a country whose prevailing religious practices conflict with the beliefs of an individual might be the basis for that individual’s request to work at a different location. Every effort should be made to accommodate such a request.

Balancing an individual’s religious beliefs with an organization’s dress and grooming practices may also become an issue. Unless safety is a factor, the employer should make a

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reasonable effort to accommodate religious-based attire and grooming. Religion and work should be kept separate, meaning that employers have the right to

require “quiet and unobtrusive” observance.

National Origin Discrimination Guidelines

The EEOC’s “Guidelines on Discrimination Because of National Origin” preclude denial of employment opportunity because of an individual’s ancestry, place of origin, or physical, cultural, or linguistic characteristics. There are four main areas pertaining to employment: 1. Citizenship requirements may not be valid if they have the purpose or effect of

discrimination on the basis of national origin. 2. Selection criteria that appear to be neutral on first glance may have an adverse impact on

certain national groups. 3. Speak-English-only rules may be considered discriminatory when applied at all times. 4. Ethnic slurs maybe considered national origin discrimination and must not be tolerated.

Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act (IRCA) makes the employment of illegal aliens unlawful and establishes requirements for employers to determine an individual’s authorization to work in the United States. The act applies to employers with four or more workers.

The Immigration and Naturalization Service (INS) determines what constitutes an acceptable document proving work eligibility and identity. Some documents establish both identity and employment eligibility; in instances where these are not produced, documents establishing identity in addition to documents establishing employment eligibility are required.

Employers must examine documents that establish an individual’s identity and eligibility to work in the United States before completing the required I-9 form. This examination should be made subsequent to the final hiring decision to avoid violation of IRCA’s antidiscrimination provisions. Employers face penalties for hiring unauthorized employees and for failure to properly complete and maintain I-9 forms.

Immigration and Customs Enforcement (ICE) has recently begun to increase the number of audits aimed at uncovering illegal hirings. Businesses are typically given three days to present their I-9 forms. If found guilty of knowingly violating verifications laws, employers have ten additional business days in which to rectify matters. If they do not, ICE may issue fines of up to $1,100 for each illegal employee, impose criminal charges, and recover assets.

Antidiscrimination provisions of the Immigration and Nationality Act regulate unfair practices during employment eligibility verification.

Drug-Free Workplace Act of 1988

Employers holding contracts with, or receiving grants from, the federal government of $25,000 or more must meet certain posting and record-keeping requirements and must develop policies prohibiting the unlawful manufacture, distribution, possession, or use of controlled substances in the workplace. The act does not make a definitive statement about requiring drug testing.

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Civil Rights Act of 1991

The primary intent of the Civil Rights Act of 1991 is to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace. It extends beyond the Civil Rights Act of 1964’s Title VII, “make-whole” remedies of back pay, reinstatement, and some attorneys’ fees in several ways:

• Coverage is extended to U.S. citizens employed at a U.S. company’s foreign site. • The burden of proof is placed on employers to show lack of discrimination. • Jury trials are permitted. • Awards of compensatory and punitive damages are permitted in cases of intentional discrimination.

• Victims of intentional sex discrimination are permitted to seek compensatory and punitive damages up to $300,000, depending on the number of employees an organization has.

• Victims of race discrimination are permitted to seek unlimited damages. • A “glass ceiling” commission has been established to develop policies for the removal of barriers to women and minorities seeking advancement.

• “Race norming,” or the practice of adjusting test scores by race, is banned.

Family and Medical Leave Act of 1993

Administered by the Wage and Hour Division, the Family and Medical Leave Act (FMLA) requires employers of fifty or more employees to grant up to twelve weeks of unpaid, job- protected leave in any twelve-month period to eligible employees for the birth or adoption of a child or for the serious illness of the employee or a spouse, child, or parent.

The FMLA has undergone several changes since its inception. Amended by the 2008 National Defense Authorization Act, the revised FMLA allowed up to six months of leave for family members caring for military veterans injured while on active duty and up to twelve weeks of leave due to any “qualifying exigency” to family members of service men and women called to active duty. In 2009 the final FMLA regulations made additional changes to the law, including new notice forms to be used and new medical certification requirements. The 2010 National Defense Authorization Act further amended the FMLA by expanding military benefits to the National Guard, military reserves, or regular armed forces when called to active duty in a foreign country. Furthermore, eligible employees may take up to twenty-six weeks of leave in a single twelve-month period to care for family members with a serious injury or illness that occurred or was aggravated while on active duty. These may be individuals currently serving in the military or a veteran up to five years after leaving military service, even if the injury did not become apparent until after the person became a veteran.

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

USERRA prohibits discrimination of employment based on military membership or service. Generally, a person re-employed by an employer is entitled to the seniority, status, pay, and other rights and benefits the employee would have received if the employee had remained

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continuously employed. Employers are expected to train or retrain returning service members so that their skills are upgraded. The law also provides for alternative re-employment positions if the returning service member cannot perform the duties of her original position. When employment is reactivated the employee is generally protected from discharge for one year except for cause.

Genetic Information Nondiscrimination Act of 2008 (GINA)

GINA prohibits discrimination against individuals in all matters of employment on the basis of genetic information of the individual or the individual’s family members. It further prohibits an insured or self-insured health care plan from denying eligibility for health care coverage or from adjusting premium or contribution rates under a plan based on an individual’s or family member’s genetic information.

Lilly Ledbetter Fair Pay Act of 2009

This act stipulates that an unlawful discriminatory act occurs each time an employee receives her paycheck, benefits, or other compensation that reflects a discriminatory practice. This resets the 180-day statute of limitations for filing an equal pay lawsuit with each new discriminatory paycheck.

Employment Non-Discrimination Act (ENDA)

As of this writing, ENDA is a bill proposed in Congress. Civilian, nonreligious employers with fifteen or more employees would effectively be prohibited from discriminating against individuals on the basis of their sexual orientation, including heterosexuality and gender identity. The act has been introduced in every Congress, with the exception of the 109th, since 1994.

Currently, fifteen states and the District of Columbia have policies that protect against sexual orientation and gender identity discrimination in employment in the public and private sectors: California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Six additional states have laws that protect against discrimination based on sexual orientation alone: Delaware, Maryland, Massachusetts, New Hampshire, New York, and Wisconsin. Many companies voluntarily provide equal rights and benefits to their lesbian, gay, bisexual, and transgender employees.

President Obama reportedly supports the current bill.

Employment- and Termination-at-Will

Employment laws and categories of discrimination do not preclude the employment-and termination-at-will doctrines, which grant employers the right to terminate, at any time for any reason, with or without cause, the employment of an individual who does not have a written contract defining the terms of employment, provided such termination does not violate state or federal laws. In exercising this right, employers are unlikely to incur legal liability.

Employees have additional rights protecting them from arbitrary acts of termination-at- will. The broadest form of protection, implied covenants of good faith and fair dealing,

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requires employers to prove “just cause” before terminating an employee. Public policy rights may also protect employees from being fired for exercising rights such as “whistle- blowing”—public disclosure of illegal actions taken by one’s company—or for refusing to perform illegal acts on behalf of an employer. Moreover, the issue of implied contract rights may arise when the protection provided by statements on the employment application form, in employee handbooks, or in other company documents is interpreted as a binding contract. In this regard, employers are advised to develop at-will policies for inclusion in these documents. A sample employment-at-will statement appears in Appendix F. It conforms to the following preemployment at-will guidelines:

• State the at-will principle. It is important to declare that your offer of employment is neither an employment contract nor a guarantee of employment.

• Avoid making statements regarding job security. Steer clear of phrases such as “We treat employees of (company name) like members of our family.”

• Avoid stating a prospective employee’s salary in yearly numbers. A statement of annual salary may imply a one-year employment contract. Instead, use weekly, biweekly, or monthly numbers.

• Avoid using the term “probationary period.” It implies that, once a given period of time is over, an individual is there to stay. Likewise, avoid the term permanent employee; instead, substitute regular employee.

In addition to including at-will statements on their application form, employers can minimize the possibility of wrongful discharge allegations and put the company in a better position to successfully defend against such action by implementing additional safeguards and ensuring that:

• Application forms are in full compliance with applicable EEO laws. • Everyone involved with the employment process is skilled in effective and legal interviewing skills.

• Applicants clearly understand the content and scope of responsibility of the position they’re being considered for before a job offer is extended.

• Job descriptions are accurate and job standards are consistent with what is required. Because the legal issues involving employment- and termination-at-will are still evolving,

employers are advised to have all written materials pertaining to the employment process reviewed by legal counsel.

Noncompete Agreements

Also known as nonsolicitation agreements or restrictive covenants, noncompete agreements are designed to protect an employer’s trade secrets, customer and marketing lists, and confidential knowledge about the employer acquired by an employee while on the job. Noncompete agreements—most commonly used in the computer industry, some professional partnerships, high-tech industries, and engineering environments—are usually presented for

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signature as a condition of employment or when a worker is promoted to a sensitive position. These agreements are intended to take effect upon termination, at which time employees may be restricted from working for a competitor for a specified period of time, often one to two years; working at the same or a comparable job in the same industry during a certain time frame; or working in a defined geographical area for a competitor.

The current trend is toward protecting employees by placing limitations on the extent to which an employer can restrict a former employee’s right to work. There are no federal laws dealing directly with noncompete agreements, but there are some state laws.

Negligent Hiring and Retention

Negligent hiring and retention may occur when employers fail to exercise reasonable care in hiring or retaining employees. Increasingly, employers are being held liable for harmful acts committed by their employees both in the workplace and away from it. Named in such lawsuits are usually the employer, the employee who caused the injury, and the person directly responsible for hiring. Findings of personal liability are not uncommon. Negligent hiring actions have been brought by employees as well as by innocent third parties, such as customers, visitors, and clients injured by the criminal, violent, or negligent acts of an employee.

Plaintiffs must prove that the employee causing the injury was unfit for hiring or retention, that the employer’s hiring or retention of that employee was the cause of the plaintiff’s injuries, and that the employer knew or should have known of the employee’s unfit condition. Generally, the deciding factor is whether an employer can establish that it exercised reasonable care in ensuring the safety of others. Reasonable care may include conducting relevant preemployment testing, checking references, investigating gaps in an applicant’s employment history, verifying academic achievements, conducting a criminal investigation, checking an applicant’s credit history, or verifying the individual’s driving record. The type of position an employee is hired for typically plays a role in how extensive the investigation should be. For example, unsupervised positions in which the employee has a great deal of contact with customers, clients, visitors, or other employees may require more in-depth preemployment investigation than would jobs that are highly supervised.

Juries may not be sympathetic to the difficulties an employer encounters in obtaining relevant background information on which to base a hiring decision. Employers in court because of negligent hiring or retention charges report that juries often find for the plaintiff. The trial of such actions may involve the examination of a number of issues, including what the employer actually knew about the individual, as opposed to what it tried to ascertain; whether the potential risk to others could have been reasonably discovered through interviews or reference and background checks; and whether the risk to others was greater because of the nature of the job. Consideration of these questions may implicate the employer in an act of negligent hiring or retention. Employers should note that such lawsuits might prove more costly than typical employee litigation because of potentially higher awards of punitive damages.

It’s apparent from all this that preventive measures are an employer’s best defense against charges of negligent hiring or retention. In this regard, employers are advised to do the following:

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• Conduct comprehensive employment interviews. • Investigate all gaps in employment. • Conduct job-related preemployment tests. • Conduct thorough reference and background checks. • Keep written notes of information received when checking references. • Decide whether a criminal investigation is warranted, based on information received. • Immediately investigate any allegations of employee misconduct. • Consult with legal counsel when in doubt as to what course of action to take.

Record-Keeping Requirements

Employers are obliged to retain documents according to certain federal and state stipulations, and longer if a claim or government investigation is conducted or threatened. This requirement appears in the record-retention provisions of most federal and state EEO laws, as well as the Sarbanes-Oxley Act of 2002 (SOX). Enacted as a reaction to several major corporate and accounting scandals, SOX requires greater accountability of all U.S. public corporate boards, management, and public accounting firms. Individuals who tamper with records or documents can be fined and imprisoned for up to twenty years.

As with certain aspects of key employment legislation that may not appear on the surface to relate directly to interviewing, a closer examination of record-keeping requirements reveals an important correlation with the interviewing process for new hires as well as for promotions and internal transfers.

Federal Retention Requirements

Some of the specific record-keeping requirements for relevant laws are summarized as follows:

• Age Discrimination in Employment Act. Employers with twenty or more employees must keep payroll or any other records containing the name, address, birth date, occupation, rate of pay, and weekly compensation of each employee for three years.

• Americans with Disabilities Act. Employers with fifteen or more employees must retain all HR records involving a person with a disability, whether they have hired that person or not. With specific regard to interviewing, keep requests for reasonable accommodation with job applications. All records must be kept for one year from the date the record was made or an employment action was taken, whichever is later.

• Civil Rights Act of 1964, Title VII. Employers with fifteen or more employees must retain all HR records, including resumes, applications, interview notes, and test results for one year. EEO-1 reports must be retained for one year by employers with one hundred or more employees, and federal contractors with fifty or more employees.

• Consolidated Omnibus Budget Reconciliation Act. While employers that offer group health insurance benefits are not required to maintain records for any specific period of time, experts recommend three years.

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• Employee Retirement Income Security Act. All employers with employee benefit plans must retain records for six years.

• Equal Pay Act. All employers must retain FLSA-required records, as well as wage rates and descriptions of wage differentials for individuals of both genders for three years.

• Executive Order 11246. All employers with federal contracts or subcontractors should retain HR records relating to their affirmative action programs for a recommended period of three years. Affirmative action plans must be updated annually and retained for two years.

• Family and Medical Leave Act. Employers with fifty or more employees must keep detailed payroll and leave-related records for three years.

• Immigration Reform and Control Act. I-9 forms must be kept by all employers for three years or one year after termination, whichever is later.

• Occupational Safety and Health Act. Employers with ten or more employees must maintain certain forms as they relate to injuries and illnesses for five years: Specifically, these are forms 300, 300A, and 301. Records of medical exams required by this act or records relating to employee exposure to toxic or hazardous materials must be kept for thirty years after termination.

• Older Workers Benefit Protection Act. Employers with twenty or more employees are required to maintain pay-related information for three years.

• Rehabilitation Act of 1973. Public employers and federal contractors or subcontractors must keep HR-related records for applicants and employees with disabilities for two years (one year for employers with fewer than 150 employees and $150,000 in government contracts). Employers should also keep a record of complaints and actions taken under the act.

State Retention Requirements

Most states’ nondiscrimination laws have document-retention requirements that must be met in addition to federal stipulations. Thus, employers in some states will have to retain files for longer than the federally mandated period. For employers with locations in multiple states, this means reviewing the file-retention requirements in each state.

Employers may have to retain files for their defense in several types of legal actions, including charges of state common law fraud, tort claims, and contract claims. For example, an applicant could accuse an employer of fraud by claiming the employer misled him about the particulars or availability of a job. Tort claims could result from inferences of defamation and invasion of privacy. Contract laws may be brought into play when employees take issue with their employment contracts, both written or oral.

This last point—employment contracts—becomes especially complex when you consider that the retention periods for written and oral contracts can vary in the same state. Florida, for example, has a four-year statute for oral contracts, but a five-year statute for written contracts; in Illinois, there is a five-year statute for oral contracts, but a ten-year statute for written contracts. To further complicate matters, some states interpret written contracts broadly to include e-mail correspondence.

In many states there is something called a “catch-all statute of limitations” that covers all claims not covered under a specific statute of limitations. This is usually six years. Rather than

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trying to follow the myriad rules concerning retention, many employers opt to adopt the six- year rule across the board, hoping it will cover most fraud, tort, and contract claims.

State record-keeping requirements cover multiple topics, including apprenticeships, child labor, health and safety, employee access to HR records, unemployment, and workers compensation.

With regard to applicants who are not hired, federal nondiscrimination laws require a one- year record-retention period. Some states, however, have longer requirements, such as California, where applicant records must be retained for two years.

Employers are advised to weigh the risks of failing to retain files for the entire length of a statute of limitations against the potential costs, e.g., administrative expenses. If at all possible, retain all records for the longest statute of limitations period and then some.

Electronic Record-Keeping Guidelines

The Uniform Electronic Transaction Act (UETA) stipulates that electronic records have the same status and protection as paper records and that electronic signatures have the same status as those in ink. Employers are permitted to substitute electronic documents for paper documents if the following conditions are met:

• Electronic documents are easily printed out; • Electronic copies accurately replicate the original paper documents; • Backup procedures and security systems are in place to safeguard against damage to electronic documents; and

• Electronic documents can be easily accessed by the Office of Federal Contract Compliance Programs (OFCCP).

Experts recommend a multitiered security system in order to maintain confidentiality and limited access.

Once documents have been transferred to an electronic format, employers may destroy the originals. Most employers opt for shredding, although many are hesitant and keep certain original records pertaining to employment contracts, settlement documents, and anything that has been notarized. In general, then, documents that are difficult to authenticate are retained in their original form.

As with paper records, electronic records containing I-9 information and medical, employment, and EEO records must be kept in separate files.

While not required of all records, there is a general four-year retention rule recommended by many attorneys, even if federal or state requirements suggest shorter periods of time. This applies to employee name, gender, and address; social security number; date of birth if a minor; work schedule; total wages paid each pay period, dates of payment, overtime, tips, and other forms of compensation other than an employee’s regular rate of pay; contracts and collective bargaining agreements; terms and conditions of employment; and forms W-4 (federal tax withholding) and W-2 (report of annual wages and the amount of taxes withheld).

Most experts recommend keeping HR files of all applicants, including those not hired, for two years from the date of an employment action. HR files include job ads and responses;

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applications and resumes; tests, including physicals; records of rejecting applicants for hire; and accounts of reasonable accommodation. I-9 forms should be kept for three years after the date of hire or one year after the date of an employee’s termination, whichever is later.

Records need to be dated and accessible, and ready to be produced in twenty-four to forty- eight hours. Records relating to employment and medical matters must be kept in separate files.

Affirmative Action

Because Title VII did not immediately have the desired effect on discrimination, a series of executive orders was issued by the federal government, first by President Kennedy in 1961 and later strengthened by President Johnson in 1965. The best known, Executive Order 11246, contained an EEO clause that required companies doing business with the federal government to make a series of commitments. Three of the most significant commitments are to:

1. Practice nondiscrimination in employment. When a company does business with the federal government, it is on the basis of a contract; should the company discriminate in its interviewing and hiring practices, it would effectively be violating its contract. The ramifications of this could be severe, including contract cancellation and debarment, meaning that the government would no longer do business with that company.

2. Attain affirmative action goals. This commits a company to hiring, training, and promoting a certain percentage of qualified women and minorities. The actual percentage is based on the number of women and minorities in a specific geographic location, referred to as a Standard Metropolitan Statistical Area (SMSA). Employers should contact the Office of Federal Contract Compliance Programs (OFCCP) to determine the most recent requirements for separate affirmative action plans pertaining to different establishments.

3. Obey the rules and regulations of the Department of Labor. This agreement extends to allowing periodic checking of its premises by labor representatives to ensure compliance with the other two commitments identified here.

Affirmative Action Plans (AAPs)

Increasingly, employers are adopting formal, written AAPs even where these are not required, in an effort to correct racial and gender imbalances in the workplace. These plans include internal auditing and reporting systems that measure progress toward achieving a bias-free work environment.

Written AAPs should encompass a minimum of seven key elements:

1. A policy statement 2. Internal dissemination of the policy 3. External dissemination of the policy 4. Positive utilization efforts 5. A review of internal procedures 6. Implementation, development, and execution

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7. The establishment of a complaint procedure

Affirmative action guidelines may be obtained by contacting the Department of Labor at www.dol.gov/index.htm.

Currently, the OFCCP requires federal contractors and subcontractors to develop written AAPs where fifty or more workers are employed and the employer engages in $50,000 worth of business annually with the federal government. Other stipulations pertain to employers with contracts of varying amounts ranging from $10,000 to $5 million or more, as well as employers in certain industries, such as construction. Contractors are expected to maintain proper documentation and make records of compliance available to the OFCCP.

In the absence of a written AAP, it is more difficult to provide credible evidence that the employer is making a bona fide effort to correct real or perceived discrimination.

Diversity

Any AAP should be temporary, to be abandoned and replaced by a diversity-driven work environment once workplace equity has been achieved. Diversity-driven work environments go beyond affirmative action by nurturing individuality and making changes to suit the needs of employees without sacrificing business goals. Diversity reflects all the factors that identify us. The term extends beyond race, religion, sex, or national origin. It includes the multitude of ways in which we are unique and at the same time similar, such as customs, language, lifestyle, mental abilities, personality, physical characteristics, sexual orientation, socioeconomic status, talents, values, and work styles.

The ultimate goal of a diverse workplace is for everyone to work together toward achieving common organizational objectives while prospering individually. Achieving organizational goals requires flexibility and cooperation; the onus for adaptation cannot be placed solely on those employees outside the dominant culture, i.e., the culture to which the people in power belong. In order for a business to grow and profit, everyone must make a commitment to diversity. This commitment begins with open-mindedness during the interviewing process.

Advantages of Diversity-Driven Work Environments

There are many advantages to seeking a diverse workforce. Employers are able to select from a larger labor pool, enhancing the chances of finding qualified applicants. Such applicants reflect a variety of backgrounds and experiences, increasing the degree of talent and extent of contributions they bring to the organization. Employees will appreciate the multicultural environment provided and are thus likely to be more motivated and have a better attitude, resulting in higher productivity. A diversity-driven work environment can also result in fewer discrimination charges and lawsuits.

Having a diverse workforce is especially critical in companies that reach out to a diverse customer or consumer base. With changing demographics in the United States, and many businesses operating on an international level, it makes good business sense to have a workforce that reflects the needs of an organization’s diverse customers.

Companies that invest in diversity as a long-term commitment may also enjoy significantly Arthur, Diane. Recruiting, Interviewing, Selecting and Orienting New Employees, AMACOM, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/capella/detail.action?docID=931154. Created from capella on 2019-09-30 19:16:38.

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better financial results than those that do not.

Discrimination Charges

Individuals who believe their employment rights have been violated may file a charge of discrimination with the EEOC.

The following information is required to file a charge of discrimination:

• The name, address, and telephone number of the person or party bringing charges • The name, address, and telephone number of the organization alleged to have committed the act of discrimination, as well as the total number of employees, if known

• A description of the alleged violation • The date of the alleged violation • Why the person believes she was discriminated against: race, color, religion, sex (including pregnancy), national origin, age, or disability

• Signature The EEOC has strict requirements with regard to filing dates for charges of discrimination.

A charge must be filed with the EEOC within 180 days from the date of the alleged violation. This 180-day filing deadline may be extended to 300 days if a state or local antidiscrimination law covers the charge.

If an organization is deemed guilty of discrimination, whether intentional or by practices that have a discriminatory effect, it may be required to comply with a host of remedies, including:

• Back pay • Hiring or reinstatement • Promotion • Reasonable accommodation • Other actions that will make a person “whole,” that is, restore her to the status she would have had were it not for the discrimination

• Attorneys’ fees • Expert witness fees • Court costs Compensatory and punitive damages may also be imposed in matters of intentional

discrimination. Damages may compensate for actual monetary losses, future monetary losses, and for mental anguish and inconvenience. Punitive damages may be imposed if it is found that an organization acted with malice or reckless indifference (the federal, state, and local governments are exempt from punitive damages).

Employers may also be required to take corrective action to cure the source of the discrimination and minimize the chances of its recurrence. This often translates into

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government-imposed affirmative action goals and training.

Avoid Discrimination Charges

While there is no absolute way of preventing applicants or employees from charging your organization with discrimination, there are guidelines you can follow to minimize the chances.

• Make certain your hiring criteria are objective, uniformly applied, and consistent in effect. By applying job criteria across the board that do not have a greater negative impact on any one group, you are demonstrating fair employment practices.

• Show job-relatedness. Every criteria you set, each question you ask, and every decision you make should be job-related.

• Focus on making sound hiring decisions that properly match an applicant’s skills, knowledge, and interests with a job’s duties and responsibilities. This should lead to fewer terminations, which is significant, since firing is the act that triggers many lawsuits.

• Pay attention to questionable “red-flag” areas on an applicant’s application or resume. Do not proceed with the interviewing process until you’re satisfied that these areas have been thoroughly explored.

• Conduct reference checks and, if relevant, background checks. While this is not always easy or even possible to do, making the effort may reveal important information that can influence your decision to extend a job offer, as well as provide protection against charges of negligent hiring and retention should you make the wrong hiring decision.

• Think like a juror. To avoid actions that generate lawsuits, think about how a juror might interpret your actions. For example: Did the employee understand, as a result of the interviewing process, what the employer would expect of him once hired? Did the employer follow policies and procedures known to the employee?

• Treat all employees equally. Most lawsuits alleging any form of discrimination are based on failure to treat employees consistently, reasonably, and fairly. This includes overt discrimination as well as more subtle forms of discrimination, such as stereotyping, patronizing, and favoritism. Note that “equal treatment” does not mean “identical treatment.” It means ensuring that each employee has the same opportunity for consideration as every other employee.

• Respect an employee’s legal rights. In addition to civil rights, these include the right to: —A safe workplace —Refuse to perform illegal acts without fear of retaliation —Not be defamed —Be free from harassing treatment —Participate in certain union activities —Compensation according to the Fair Labor Standards Act —Certain benefits under the Employee Retirement and Income Security Act (ERISA)

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Some employees may have additional rights as a result of written or implied contracts (e.g., based on the language on employment applications or in employee handbooks).

• Honestly appraise employees. Negative performance appraisals are challenging to write, but they can save you a lot of trouble later on. It’s hard to justify termination on the basis of poor performance with a file filled with glowing reviews. If an employee exhibits performance problems, identify them and together set goals for improvement. If, ultimately, you end up terminating the employee, an unjust termination lawsuit will be more difficult to sustain.

• Take allegations seriously and act promptly. Whether allegations are of sexual harassment or other forms of misconduct or illegal acts, responding quickly and appropriately will often defuse a situation and preclude a lawsuit.

Questions to Avoid Asking

Stated in the simplest of terms, if it’s not job-related, don’t ask. What’s job-related? Education and training and previous work or military experience as they relate to the requirements and duties and responsibilities of the job. Just about everything else is off limits.

The number of topics to avoid may be great in comparison with those about which you can legally inquire, but the latter can generate hundreds of legitimate, job-specific questions and answers that will help you determine job suitability. The others will provide limited responses about personal qualities that may be interesting but have no bearing on ability.

In general, the categories to steer clear of during the employment interview, whether on the application form or during the face-to-face meeting, relate to race, color, religion, sex, national origin, age, and non-job-related disabilities and genetic information.

It is significant to note that even if applicants volunteer the non-job-related information, you are still liable if the information is used illegally. Suppose you inform an applicant that the available position requires travel. You then ask if she foresees any problem in leaving for a business trip with very little advance notice. She responds, “Oh, that will be no problem at all. My mother has been babysitting for my three kids ever since my divorce last year.” The applicant has just volunteered information regarding two categories that are not job-related: children and marital status. If she is rejected, she might claim discrimination on the basis of this information, even though you did not solicit it.

Should an applicant provide information you should not have, do not write it down or pursue the subject. Tell the applicant that the information is not job-related and that you want to return to discussing her qualifications in relation to the job opening.

Exhibit 6-1 identifies the most common categories and questions to avoid during the employment interview, both verbally and via the application form. Related recommended questions are also shown. Many of the recommended inquiries appear on the application form in Appendix F.

Exhibit 6-1. Preemployment Questions Asked Verbally and/or Appearing on Applications Forms

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Bona Fide Occupational Qualifications

Sometimes the requirements of a position seem to be discriminatory in nature. For instance, jobs that specifically request a male or a female appear on the surface to be discriminatory. Upon closer investigation, however, it could become evident that the EEO concept of bona fide occupational qualification (BFOQ) would prevail. By definition, a BFOQ is a criterion that appears to be discriminatory but can be justified by business necessity. For example, an employer may have an opening for a model to show a new line of designer dresses. In this instance being female would be a BFOQ. An example of an unacceptable BFOQ would be a position requiring heavy lifting where only male applicants are considered. The requirement of lifting can be tested; all applicants—male and female—could be asked to lift the weight normally required on the job. Those unable to perform this task would not be considered. This would include all men as well as all women who could not meet the lifting requirement. Likewise, women able to lift the weight must be given an equal opportunity for the job.

BFOQs may apply to religion, gender, age, and national origin, but never to race. Furthermore, general company preference does not constitute a legitimate BFOQ. The most valid BFOQ or business-necessity defense is safety.

When there is doubt, the following business-necessity guidelines should be applied:

• Document the business necessity. • Explore alternative practices.

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• Ensure across-the-board administration of the practice. • Ensure that the business necessity is not based on stereotypical thinking, arbitrary standards, or tradition.

There are very few instances in which BFOQ applies. For example, certain categories, such as security-sensitive jobs, may make BFOQs of some of the inquiries that are not generally recommended.

If you believe that your requirements qualify as BFOQs, check with the EEOC before proceeding.

Applicant Tracking

The EEOC and the OFCCP require private employers of one hundred or more employees and federal government contractors or subcontractors with fifty or more employees and contracts in excess of $50,000 to identify their workforce by job category as well as by race, ethnicity, and gender in the EEO-1 report to be filed annually on September 30 with the EEOC. The preferred method of filing is via the web-based filing system. Companies should expect to receive their EEO-l filing materials no later than mid-August. Instructions on how to file are available on the EEOC’s website at http://www.eeoc.gov/employers/eeo1survey/howtofile.cfm.

Recent revisions to the EEO-1 form include those pertaining to ethnic and racial categories as well as job categories.

Ethnic and racial changes include:

• The addition of a category, “Two or More Races.” • The division of the category “Asian or Pacific Islander” into two separate classifications: “Asian” and “Native Hawaiian or other Pacific Islander.”

• “Blacks” are renamed “Blacks or African American.” • “Hispanics” are renamed “Hispanic or Latino.” • Self-identification replaces visual employer identification.

Job classification changes include: • The category of “Officials and Managers” is divided into two levels based on responsibility and influence: Executive/Senior Level Officials and Managers, and First/Mid-Level Officials and Managers.

• Business and financial occupations have been moved from the Officials and Managers category to the Professional category.

The OFCCP uses EEO-1 information primarily to determine which business to select for compliance evaluations.

Summary

Federal employment laws exist to ensure that all individuals have the right to compete for all Arthur, Diane. Recruiting, Interviewing, Selecting and Orienting New Employees, AMACOM, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/capella/detail.action?docID=931154. Created from capella on 2019-09-30 19:16:38.

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work opportunities without bias because of their race, color, religion, sex, national origin, age, or disability. State statutes often extend beyond protection provided by federal legislation. Employers are urged to familiarize themselves with all relevant employment laws and categories of discrimination.

These laws do not preclude the employment- and termination-at-will doctrines, which grant employers the right to terminate the employment of an individual without a written contract defining the terms of employment. But employees have rights protecting them from arbitrary acts of termination-at-will. The broadest form of protection, implied covenants of good faith and fair dealing, requires employers to prove “just cause” before terminating an employee.

Negligent hiring and retention may occur when employers fail to exercise reasonable care in hiring or retaining employees. Increasingly, employers are being held liable for the acts of their employees both in the workplace and away from it. Plaintiffs must prove that the employee causing the injury was unfit for hiring or retention.

Employers are obliged to retain documents according to certain federal and state stipulations. This requirement appears in the record-retention provisions of most federal and state EEO laws. In some states, employers are required to retain employee files for longer than the federally mandated period. The Uniform Electronic Transaction Act (UETA) stipulates that electronic records have the same status and protection as paper records. Employers are permitted to substitute electronic documents for paper documents if certain conditions have been met.

Affirmative action is the result of a series of executive orders issued by the federal government to ensure equal employment opportunity. Many federal contractors and subcontractors are required to have written plans.

Diversity-driven work environments go beyond affirmative action by acknowledging the distinctiveness of each employee and by making changes to suit the needs of all. The ultimate goal of a diverse workplace is for everyone involved to work together toward achieving common organizational objectives, while prospering individually.

Those who believe their employment rights have been violated may file a charge of discrimination with the EEOC.

To avoid discrimination charges, ask only job-related questions during employment interviews, that is, questions about experience and education as they relate to the requirements, duties, and responsibilities of the job. Make certain, too, that your application forms contain only job-related questions.

The EEOC requires most employers to break down their workforce by job category as well as by race, ethnicity, and gender. This is accomplished by filing an annual EEO-1 report.

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