Category Archives: Hiring

Brief Updates

Attendence, Compensation, Discrimination, Hiring,

The Department of Labor has released new notification forms to be used with Family and Medical Leave. If you have more than 50 employees (names on the payroll, whether full or part time), you should have an FMLA policy in your handbook and the FMLA poster on your employee bulletin board. Once an employee has requested any absence from work that might qualify as family or medical leave, then it is up to the employer to notify the employee of the employee’s eligibility for federally mandated family and medical leave, to ask for medical certification of the condition necessitating the leave and to make a final determination of eligibility. Also the employer must provide leave to military families under certain circumstances. The necessary forms to use for all of these determinations are available on the Department of Labor’s website, which you can access by clicking here.

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The wage discrimination laws that I discussed in my January 6 blog post were unsurprisingly passed by the U. S. House of Representatives last week. If they clear the Senate, you can be assured that President Obama will promptly sign them. As I stated in that post, you can get ready for this law by deleting any policy still in your employee manual that prohibits employees from discussing their salaries. You can also review the salaries of any employees performing the same jobs and make sure that you have a rock-solid (meaning something in writing from the time the salary was determined) explanation relating to tenure or extra educational or licensing qualifications to explain why a male employee is making more than a female employee.

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The Texas Legislature started its biennial circus last week in Austin. Once the drama of the Texas Speaker’s race subsided, it was time to look at the proposed legislation that could affect employers. Some of the ones I will be watching include a bill to require all employers to pay an employee her regular wages while she serves on jury duty, lots of bills penalizing employers who don’t carry worker’s compensation insurance, and family leave bills to allow parents time off to attend school activities involving their children. If any of these or other employment-related bills pass during this legislative session, I’ll keep you posted.

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Somehow, the last tidbit on giving time off to parents for school activities reminded me of this joke about an employer’s reply to an employee’s request for time off:

“So you want a day off? Let’s take a look at what you are asking for!

There are 365 days this year.

There are 52 weeks per year in which you already have 2 days off per week, leaving 261 days available for work.

Since you spend 16 hours each day away from work, you have used up 170 days, leaving only 91 days available.

You spend 30 minutes each day on coffee break. That accounts for 23 days each year, leaving only 68 days available.

With a one hour lunch period each day, you have used up another 46 days, leaving only 22 days available for work.

You normally spend 2 days per year on sick leave. This leaves you only 20 days available for work.

We are off for 5 holidays per year, so your available working time is down to 15 days.

We generously give you 14 days vacation per year which leaves only one day available for work and I’ll be damned if you’re going to take that day off!”

Understanding Changes in Disability Discrimination Law

Discrimination, Hiring, Training

2009 is going to be remembered as the year that the Americans with Disabilities Act (“ADA”) became the full employment act for employees’ lawyers. That’s because dramatic changes to the ADA went into effect on January 1, 2009. No longer can an employer assume that the ADA is an concern only if an applicant shows up in a wheelchair or with a seeing eye dog. The ADA now will significantly affect every workplace (except those small businesses with less than 15 employees) and employers need to be educated and ready to respond appropriately.

Briefly, the ADA protects mentally or physically impaired individuals who are qualified to perform a job from discrimination because of their disability. Sounds good, and it is. But for employers, the devil is in the details. The ADA Amendments Act (“ADAAA”) passed last year by the 110th Congress expanded the definition of disability in a way that I believe makes virtually every Baby Boomer a potential plaintiff in a disability discrimination lawsuit. Why? Because most of us born between 1946 and 1964 are starting to feel some of the aches and pains of middle age and that is about all that is required to claim a disability under the ADA. In addition to the 70 million Baby Boomers in the workforce, there are many younger workers who are also physically or mentally disabled.

You are disabled under the ADAAA if you have an impairment that substantially limits one or more major life activities.  “Major life activities” now include walking, seeing, hearing, and breathing, as you would expect, but also sleeping, bending, learning, reading, concentrating, thinking, communicating and working. The term also includes the operation of any major bodily function, such as respiratory and circulatory, as you would expect, but also, reproductive, digestive, and immune system.

If an employee is disabled or even regarded as disabled because of past problems (such as drug addiction that is now under control), you as an employer must provide reasonable accommodation of that employee’s disability if necessary to allow the employee to perform the essential functions of his/her job. Some employment lawyers believe that the “regarded as” component could mean that any employee who ever had a serious medical condition will always be regarded as disabled and protected by the ADA, even if the disease is now in remission.

You can expect to deal with the ADA when an infertile female employee wants to take time off as an accommodation so that she can receive fertility treatments. An employee who needs a 25-inch computer monitor because his poor vision makes it hard for him to read even with his eyeglasses may now need to be accommodated. An employee who is bi-polar may be able to request moving away from an annoying coworker if she says the coworker is a depression trigger. The fact that the employee could take mitigating measures to fix or control the problem, such as taking her medications to prevent depressive episodes, can no longer be considered to determine whether the employee is actually disabled.

What can you as an employer do to keep your company out of legal hot water with the ADA? Continue reading Understanding Changes in Disability Discrimination Law →

Smoking as a Hiring Disqualification

Discrimination, Hiring,

The latest employment controversy in Amarillo is Baptist St. Anthony hospital’s new policy of refusing to hire new employees whose pre-employment drug test shows the presence of nicotine. BSA is straightforward about its refusal to hire any new smokers for its non-smoking campus, in part because its sole mission is healthcare. Click here to read the original story from the Amarillo Globe-News. From the number of comments this story has generated on the Globe-News website, the KVII website and the letters to the editor it appears that many people have strong opinions on this subject, many believing that BSA’s policy is discriminatory.

The advantages of the policy for BSA are obvious: adherence to its mission of promoting health, improved morale of persons bothered by the smell of smoke, less absenteeism and eventually decreased health insurance premiums and claims. While the policy may also shrink the pool of qualified job applicants, I would bet that in the current economic crisis BSA is not too concerned about that problem.

But can BSA legally enforce this policy? In the Globe-News story, I was quoted as saying that there is no federal or state discrimination law that is violated by BSA’s new policy. I stand by that quote. Jeff Blackburn, another local attorney who tends to take the employee’s side of things, apparently disagrees with me and says that it is a violation of a person’s civil rights to deny a smoker employment. Click here for his comments on KVII TV’s website. I don’t know of any Texas or federal law that supports Jeff’s argument, so Jeff and I will just have to agree to disagree on this point. It might be different if smoking were like race or age, a protected characteristic that you can’t change and which should not put you at an employment disadvantage. However, smoking is a choice, and one of the consequences of that choice now will be that you cannot be hired at BSA.

Other states handle this issue differently.

According to the National Workrights Institute, 30 states and the District of Columbia currently have some form of smokers’ rights laws on the books. These so-called “lifestyle antidiscrimination” laws protect employees and applicants from discipline or other adverse employment actions either specifically because they smoke or generally because the persons use a lawful product, such as tobacco, outside of work.

Legal Trends: Smelling Smoke, HR Magazine (December 2006).

Since there is no lifestyle antidiscrimination law on the books in Texas and since Texas courts generally uphold the “at will” employment rights of businesses to fire someone for good reason, bad reason or no reason at all, I think Texas courts would support BSA on this one. Texas employers, in my opinion, are free to screen for nicotine just like any other drug at the pre-employment stage and free to refuse to hire anyone who fails that drug test.

I am interested in your opinion on this matter, so feel free to click the word “comment” below and tell me what you think.

You Can’t Ask That!

Hiring,

Here’s a quick list for you to print out and slide under the glass on your desktop. These are the questions that you can’t ask an applicant when you are interviewing them. Okay, you can ask them. Nobody’s stopping you. But you won’t ask them if you are smart, rational, prudent and consider a discrimination lawsuit against you or your company a big waste of your valuable time, money, energy and emotion.

Don’t ask:

  • Where are you from? Where did you grow up? What kind of accent is that? (national origin discrimination)
  • When were you born? When did you graduate from high school? How old are you? What is your birthdate? (age discrimination)
  • Where do you go to church? Do you believe in Jesus? What do you do with your Sundays? (religious discrimination)
  • Are you married? Do you have kids? Where does your husband work? Who takes care of your kids after school? (gender discrimination)
  • Have you ever been arrested? What for? (possible racial discrimination)
  • Are you a U.S. citizen? (national origin discrimination)
  • Have you ever made a worker’s compensation claim? Have you ever been injured on the job? How’s your back? (disability discrimination)
  • Do you belong to a union? Have you ever belonged to a union? Are you sympathetic with union members? (violation of the National Labor Relations Act)
  • Have you ever used illegal drugs? Have you ever had a problem with alcohol? What medications are you on? Do you have any physical or mental impairments? What’s wrong with your arm, leg, hearing, speech, etc.? (disability discrimination)
  • Are you pregnant? Are you planning on having kids? (pregnancy and/or gender discrimination)
  • Have you ever declared bankruptcy? (discrimination under the Bankruptcy Act)
  • What clubs and organizations do you belong to? What causes do you support? (this could reveal illnesses, religious beliefs, family issues, marital status, race and other grounds on which you could be accused of discriminating)
  • Is English your first language? Do you know that we have an English-only policy? (national origin discrimination)
  • Do you have elderly parents or an illness in the family that would take you away from work? (disability discrimination)

If this seems like a whole bunch of rules to remember, try focusing on this one rule: If your question isn’t related to how the applicant could perform the job, don’t ask it.

Employer Faces Child Labor Criminal Charges

Employee Rights, Hiring

Note: This Employer’s Advocate column was originally published in the Amarillo Globe-News on Sunday, October 12, 2008.

This newspaper reported last month that the owner and the managers of the nation’s largest kosher meat-packing plant (Agriprocessors in Postville, Iowa) were criminally charged with more than 9000 individual counts apiece for employing children younger than 16 to handle dangerous equipment such as power saws and meat grinders. The children were also exposed to hazardous chemicals, according to the charges.

To assure that your business and you personally never get into that kind of criminal trouble, you have to educate yourself on the child labor laws.

A common trap that employers fall into with workers under 18 is to allow them to frequently drive on the job. No employee under 17 may drive a motor vehicle on public roads as part of his job. That means that you can’t use a 16-year-old to even run to the office supply store.

If your employee is 17, she can drive on the job only during daylight hours, only if she has completed a state approved driver’s education course and has no moving violations on her record at the time of hire, always wears a seatbelt and only if she spends no more than 20 percent of her time during any one workweek driving on company business.

There are other traps in the child labor laws, such as restrictions on allowing teens to work in fast-food restaurants near the meat slicers. Also, some states have even stricter laws than the federal law outlined here.

So here are the general child labor laws that you must follow: Continue reading Employer Faces Child Labor Criminal Charges →

Checking An Applicant’s Past Employers

Hiring

One of the crucial parts of hiring a new employee is calling each past employer that the applicant discloses to find out what kind of employee the applicant has been during his career. It is true that some former employers won’t give out specific information about past employees, mainly because their employment attorneys have advised them to keep quiet. Even if the former employer won’t talk, you still need to document that you made the attempt to investigate to avoid any kind of negligent hiring claim.

However, in many small towns, like those in the Texas Panhandle, you can get a former employer to talk, mainly because you probably attend Rotary with, go to church with, or coach t-ball with the former employer. But even if you know you can find out something about the applicant, what do you want to know? Here are suggested questions to ask about an applicant: Continue reading Checking An Applicant’s Past Employers →

Hiring Tips

Hiring

           My husband, Rohn, heard a wonderful speaker from West Texas A & M’s career center the other day. She said that most employers spend less than one minute on each application they review. No wonder job seekers need a very eye-catching resume.

            I hope that, as an employer, your initial review of a huge stack of applications is the only part of the hiring process you perform so quickly. Hiring can be fraught with liability dangers for employers with 15 or more employers. Taking your time to “hire right” is just practicing smart legal preventative medicine.

Here are some tips on reducing any employer’s chances of violating employment laws during hiring:

            Have one well-trained manager who does all of your hiring for you. Letting each supervisor do their own interviewing will surely result in one of them asking the wrong question or hiring the wrong candidate because they had a “gut feeling” about the applicant.

            Take the time to draft a job description for the position before you start advertising it. You have to know what duties need to be performed before you try to find the right person to perform them.

Continue reading Hiring Tips →

Hiring Teen Workers

Employee Rights, Hiring

Summer is coming and you may be thinking about hiring some teen workers under the age of 18. Here’s some lawyerly advice: Proceed with Caution.

 

There are lots of legal restrictions on hiring teens, which are still considered “child labor” by the Department of Labor. You need to review the basic rules on the Department of Labor website, www.dol.gov, such the limitations on the hours that 14- and 15-year-olds can work:

  • Non-school hours;
  • 3 hours in a school day;
  • 18 hours in a school week;
  • 8 hours on a non-school day;
  • 40 hours on a non-school week; and
  • hours between 7 a.m. and 7 p.m. (except from June 1 through Labor Day, when the evening hours are extended to 9 p.m.)

If you are hiring a 16- or 17- year old, there are no limits on the hours that he can work. However, there are limits on the duties anyone under 18 can perform. He generally cannot work in any occupation considered hazardous, including construction jobs, warehousing jobs, public messenger jobs or jobs that require the use of power-driven machines, such as meat slicers, bakery equipment, power saws, etc.

Continue reading Hiring Teen Workers →

Prevent Legal Problems in Hiring

Hiring

          The hiring process can be as nerve-wracking on the employer as the applicant. One of Murphy’s laws of recruiting is “The ideal candidate – isn’t.”

Employers often receive embarrassingly bad resumes. Have you ever seen any as flawed as these actual resume excerpts compiled by Accountemps?

“Here are my qualifications for you to overlook.”

“Thanks for your consideration. Hope to hear from you shorty.

“I am a great team player I am.” (And I do not like green eggs and ham!)

“I have lurnt Word Perfect 6.0, computor and spreadsheat progroms.” (But has yet to master the spell check.)

“Received a plague for Salesperson of the Year.”

Continue reading Prevent Legal Problems in Hiring →