Many employers have questions about their legal rights and obligations with respect to job applicants and employees, how to help prevent wrongful termination and other job-related claims, and what do if a claim is made. Here are answers to some of the most often asked ones.
Q. What questions can I ask in a job interview?
A. You can ask job-related questions that focus on the applicant's qualifications, such as skills, background and work experience. Don’t ask questions that directly or indirectly call for information that is an unlawful ground for discrimination, like asking about the person’s race, color, religion, sex, age or national origin. Some states have more protected categories, like sexual orientation.
There are things employers need to know in order to lawfully hire someone. For example, employers cannot hire people who are not permitted to work in this country. So it is permissible to ask if the person is legally allowed to work in the United States (as opposed to asking what country he or she is from). When in doubt about what questions are permissible, seek a lawyer's help.
Q. Can I consider a job applicant's disability when hiring?
A. The Americans with Disabilities Act prohibits employers from discriminating against a person with a disability in all aspects of a job, including hiring, firing, salary and promotions. However, you can consider a person's disability if it will prevent him or her from performing the "essential functions" of the job even if you make what the law calls "reasonable accommodations." To help avoid legal problems stemming from a job interview, one approach is to inform the applicant of the essential functions of a job, and then ask how he or she would perform them.
Q. I want to run credit checks on prospective employees and existing employees I'm considering promoting to make sure they are financially responsible. Can I do this?
A. Yes, provided you notify the person in writing that you are doing so and he or she consents in writing. If the applicant or employee is denied the job (or promotion) based on the credit report, you must notify him or her of this and provide a copy of the credit report.
Q. Some of my company’s employees like to tell sexually-oriented jokes. Will this get me in trouble?
A. Laws and court rulings in the area of sexual harassment make it dangerous for a company to allow sexually-oriented jokes in the workplace. If the jokes are offensive to a reasonable person, your company could be liable for a type of sexual harassment called “hostile work environment.”
Q. What federal laws cover job discrimination?
A. There are several federal laws that cover job discrimination, including:
• the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex or national origin;
• the Equal Pay Act of 1963 prohibits sex-based wage discrimination for men and women who perform substantially equal work in the same business;
• the Age Discrimination in Employment Act of 1967 prohibits discrimination against workers who are 40 and older; and
• the American with Disabilities Act prohibits discrimination against people with disabilities.
Q. My business is small. Do discrimination laws still apply?
A. Many federal discrimination laws apply to companies with 15 or more employees. Some apply to all employers. It’s hard for business owners to remember which laws do and don’t apply, and state discrimination laws may cover smaller employers. You should avoid discrimination no matter the size of your business. If a special situation arises, consult a lawyer first.
Q. As an employer, how can I help prevent discrimination or harassment claims by my employees when I can't watch what everyone does?
A. Employers should distribute a written policy to all employees -- and enforce the policy -- prohibiting discrimination and harassment and setting forth a procedure for making complaints. Businesses should regularly remind employees that all forms of harassment and discrimination are forbidden and to report such conduct promptly. If the business conducts a prompt and full investigation after a complaint of alleged discrimination or harassment, and takes fast action to fix the problem, it has a much better chance of defeating a legal claim.
Q. Is it possible to fire someone whose work I’m not satisfied with?
A. The general rule is that workers are employed “at will.” This means that unless there's an agreement limiting the right to fire someone, the company or the worker can end the employment relationship at any time. An agreement can be "express," meaning there is a written or oral agreement. In some states, courts rule agreements can also be "implied." This means workplace history and conduct create an implied agreement that an employee will be fired only for good cause. If there’s no express or implied agreement, you can let someone go if you are dissatisfied with his or her work. But you cannot let the person go for an unlawful reason. For example, you can’t fire someone for complaining about unsafe conditions, for refusing to do something illegal, or based on his or her sex, race, religion, national origin, age or disability.
Q. What can my company do to have more certainty about being able to terminate employees?
A. You can have an employee manual that makes it clear workers are employed on an “at will” basis, and that this arrangement cannot be impliedly changed. Another way to avoid claims is to be sure a termination is not for an unlawful reason. Also, if you have high employee turnover, consider buying Employment Practices Liability Insurance to protect against wrongful termination claims.
Q. Must my company pay severance to a fired employee?
A. Usually no. If the employee is at will and there was no promise to pay severance, there is no legal requirement to do so. But if severance was paid to other terminated employees, a fired employee may try to claim this established an implied agreement to pay severance to everyone. Consider adding a statement in your employee manual that on termination, no employee has a right or claim to severance.
Q. If an employee is diagnosed with a disorder that makes it harder to do his or her job, what should I do?
A. Companies with 15 or more employees are covered by the Americans With Disabilities Act. This law requires employers to make reasonable accommodations for qualified individuals with a disability. If the employee can still perform essential job functions, the company must make a reasonable accommodation to let him or her do so. This may mean obtaining new equipment, changing work schedules or other steps provided they do not create an "undue hardship" on the employer.
Q. If one of my employees is expecting a baby, do I have to give her time off from work?
A. Under the federal Family Medical Leave Act, if your company has 50 or more employees, workers are entitled to as much as 12 weeks of leave to care for a new child, certain seriously ill relatives, or to recover from their own serious health condition. Employers do not have to pay for this time off, but cannot discriminate against the employee for taking time off.
Some states have their own family and medical leave laws which apply to companies with less than 50 employees and/or offer different rules regarding taking time off for medical purposes.
These are some of the most common questions employers have about the working relationship with their employees. If you have employment-related questions or concerns, please call us. We will be happy to assist you and help you avoid expensive and time-consuming legal claims by employees.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.