AVOIDING EMPLOYEE CLAIMS IN HIRING PRACTICES
By Susan R. Snowden
No employer wants to be accused of discrimination and have a claim filed as a result of their hiring practices. To avoid employment claims, every employer should periodically review their employment advertisements, applications, and their interviewing techniques to confirm that they are in compliance with federal and state laws. All employers should strive to achieve a discrimination free workplace.
To ensure that your advertising, application, and hiring process is free from any appearance of discrimination, you should review your job application form. You should determine whether it allows for permission to be given by the applicant for you to obtain reference information.
During the interview, there are numerous topics that you should avoid and this information should also not be requested on the application for employment. Those topics are:
- Date of birth and age. Federal law prohibits discrimination on the basis of age. You can inquire if a potential applicant is over the age of eighteen; however, you may not make any further inquiries.
- Marital status and number of children. Make sure that your application does not contain a check box for Mr., Ms., or Mrs. You should not request information concerning spouses, spouses’ names, spouses’ work, or whether a potential employee is widowed or divorced. Provisions for child care are not a basis for a hiring decision. The Equal Employment Opportunity Commission (EEOC) guidelines on pre-employment state that such questions should not be asked since they are often times used to discriminate against women.
- Sex of an applicant. Unless the sex of an applicant is a bona fide occupational qualification, then it is irrelevant to a lawful hiring decision. Instances where sex is a bona fide occupational qualification are in drama or acting parts or an audition.
- Height and weight. Unless height and weight requirements are directly related to the actual ability to perform the job, those questions and answers are presumed to be discriminatory. Questions about these topics on an application or in an interview should be avoided.
- Color of eyes or hair. This information should not be requested on any job application, as these questions may elicit information revealing race.
- Citizenship. It is against federal law to request one’s citizenship since federal law prohibits discrimination against aliens who may lawfully seek employment. Instead you may ask if they are legally eligible to work in the United States.
- Prior arrest and conviction records. The best practice would be to not ask for prior arrest information. An employer may consider recent convictions which are “job related”. The employer must be prepared to demonstrate the job relatedness of the conviction, such as indicating applicant’s unfitness for a particular job. For instance, FDIC regulations prohibit a bank from hiring any person who has a conviction for an offense of dishonesty or beach of trust. Some government contracting requirements may prohibit this type of employment as well.
- Physical or mental limitations. Employers are prohibited from inquiring as to whether an applicant has a disability. However, you may ask an applicant questions concerning their ability to perform the essential functions of the job. If you are required to comply with the Americans With Disability Act (ADA), you should be very careful with this area of questioning and may want to seek the advice of an attorney in this regard.
- Inquiries concerning illness. Pre-employment inquiries concerning illness are prohibited as they may reveal the disability of an applicant. An employer may, however, inform a potential applicant of the employer’s attendance policies and ask if the applicant believes they are able to meet those requirements.
- Workers’ Compensation history. An inquiry concerning a potential employee’s prior Workers’ Compensation history is prohibited.
- Treatment for drug addiction or alcoholism. This information may not be requested.
- Religious beliefs. Stay away from this line of inquiry unless the religion is a bona fide occupational qualification. Church related and affiliated employers should seek the advice of counsel in this area.
Once an applicant is hired, put the terms of hire in writing. The West Virginia Wage Payment and Collection Act requires an employer to notify the employee, in writing, of:
1. The rate of pay, day, hour and place of payment (at time of hiring);
2. Any changes to the rate of pay, day, hour and place of payment;
3. Employment practices and policies with regard to vacation pay, sick leave and comparable matters; and
4. Itemized statement of reductions from wages for each pay period.
A summary of the West Virginia Wage Payment and Collection Act must be posted at all places of employment.
Using these tips will help you to avoid any appearance of discriminatory hiring practices. The Equal Employment Opportunity Commission provides good reference guides which can help you avoid interview pitfalls. You can find more information at http://www.eeoc.gov/eeoc/publications/index.cfm.
Susan R. Snowden is a Shareholder for Martin & Seibert, L.C., in Martinsburg, West Virginia. She practices in the areas of employment matters and litigation, insurance defense, and class actions. She can be reached at (304) 262-3220 or email [email protected] This article is for general information only, always consult with an attorney for specific legal advice.