Employment Law 101 Interviewing and Hiring: What Every In-House Attorney Should Know ACC Back to School Event Allison L. Feldstein, Esq. Lindsey C. Kennedy, Esq. August 23, 2018

Agenda Employment laws involved in the interviewing and hiring process Interview and application inquiries EEO/anti-discrimination concerns Medical examinations and disability accommodations Background checks I-9 completion Wage and hour classification

Many Laws Cover the Pre-Employment Relationship Title VII State Statutes ADEA PA Human Relations Act FLSA Local Ordinances ADA USERRA City of Pittsburgh Ordinance NLRA Other IRCA Medical marijuana, salary history, criminal history, etc. FCRA FMLA

Discrete Tips and Points to Keep in Mind Unlawful discrimination under the ADA includes discrimination against individuals who have a record of a substantially limited impairment, are perceived as having an impairment, and/or are associated with an individual with a known disability Under federal law and in PA, applicants are protected from age discrimination if they are 40 or older, but some other states’ laws also prohibit “reverse” age discrimination

More Discrete Tips and Points to Keep in Mind Some employment laws impose individual liability for those who make unlawful hiring decisions – e.g., FMLA, USERRA, PHRA Protections for sexual orientation, gender identity, and gender expression are becoming ubiquitous The PHRA also protects against discrimination based on familial status, religious creed, ancestry, and use of guide or support animals

Application, Interview, and Hiring Inquiries

Avoiding Discriminatory Actions in the Hiring Process Goal is to hire the best person for the job Best way to do that is to limit inquiries to those related to the job Discrimination occurs when an employer subjects an applicant to different terms and conditions because of the applicant’s protected class Unlawful discrimination can occur at nearly any point in the hiring process

The Candidate Search EEO challenges to the hiring process begin well before interviews and actual hiring decisions Best practices: Post the position, even if an internal candidate is preferred Avoid potential “disparate impact” liability Review the language in the job posting Consider redacting names of employees from resumes before the initial review

Interview/Application Questions The obvious ones: do not ask any questions related to race, color, religion, sex, pregnancy, sexual orientation, age You may, however, ask questions designed to: Determine availability for work Verify prior employment and education/certifications Be mindful of friendly “small talk” – e.g., which church or synagogue the applicants attends, where the applicant’s children attend day care This is business, not a conversation!

Interview/Application Questions Military Status - Do not ask questions which might reveal military or national guard status, including type of discharge You may ask questions relevant to duties of the position (e.g., leadership or educational experience acquired in military) Union Activities - Do not ask questions which will reveal union sympathies or membership Watch out for union “salting”

Interview/Application Questions Eligibility to Work in the U.S. - Do not ask questions that reveal citizenship, ancestry or national origin Do not ask about English fluency unless it is job-related You may ask whether the applicant is authorized to work in the U.S. Off Duty Activities - Do not ask questions about political affiliations or fraternization

Interview/Application Questions Salary History – Beware of laws prohibiting salary history questions Neither federal nor PA state law prohibit these inquiries But see Philadelphia’s Wage Equity Ordinance. Currently, employers may ask about wage history but may not rely on wage history in making decisions

Interview/Application Questions – Arrests and Criminal Convictions Arrests - Do not ask questions about arrests Convictions – May inquire as to convictions, but proceed cautiously Beware of “ban-the-box” laws PA does not have one, but Philadelphia does PA Criminal History Record Information Act (more on this later)

Interview/Application Questions – Disability and Medical Information Disability - Do not ask questions which will reveal disabilities or past medical history This includes questions regarding certification to use medical marijuana You may ask if the applicant can perform tasks consistent with the job description Workers’ Compensation – Do not ask questions which will reveal a candidate’s workers’ comp history

More on Disability Issues Cannot ask questions about an applicant’s disability or perceived disability before offer If employee reveals a disability on her own, may ask what type of reasonable accommodation she may require Can inquire if able to perform the essential functions of the job with or without reasonable accommodation “Can you lift [x] pounds?” “Can you meet the attendance requirements for this position?”

Medical Examinations Prior to job offer . . . No medical/physical exams or drug/alcohol tests After conditional job offer . . . Can require medical exams if: Doing so for all entering employees in the same job category Results are kept confidential Exams not use to discriminate

Withdrawing a Job Offer Any decision to withdraw job offer based on medical examination results must be job-related and consistent with business necessity Can withdraw offer if a reasonable accommodation is unavailable or would cause undue hardship Can also withdraw offer if candidate poses a direct threat to the health and safety of the candidate or others Requires individualized assessment Avoid generalizations and stereotypes

Background Checks

Why do Background Checks? Reduce litigation exposure (e.g., respondeat superior/vicarious liability) Reduce risk of workplace violence Reduce risk of employee theft or honesty-related crimes Confirm accuracy of candidate’s credentials

Fair Credit Reporting Act Applies when an employer obtains information from a “Credit Reporting Agency” E.g., credit agencies, private investigators, online databases charging for access to specific files of personal information Does not apply to an employer collecting information on its own for its own use Does not require employers to verify information Different rules may apply to reports related to jobs paying less than $75,000

Employer Obligations Under the FCRA Prior to obtaining consumer report, employers must provide written disclosure and obtain written consent from applicant Must certify to the CRA that employer will comply with disclosure and adverse action requirements Additional obligations for investigative consumer reports (i.e., those involving personal interviews)

FCRA Requirements: Adverse Employment Actions If employer takes adverse action against applicant based on information contained in consumer report, employer must: Before the action: provide applicant with copy of the report and written summary of consumer rights After the action: provide post-adverse action notice, which includes: Contact information of the CRA Statement that the CRA did not make employment decision and cannot provide information in this regard Notice of right to obtain a copy of the report and contest its contents Credit score info (if used in taking the adverse action)

Internal Background Checks Best practice is to obtain written consent from applicant Avoid relying on (or appearing to rely on) information regarding demographics or affiliations Avoid screening candidates in inconsistent manner

Social Media in Hiring Some states have enacted laws prohibiting discrimination on the basis of lawful off-duty conduct Beware of age-related issues and assumptions: Targeted advertising (e.g., advertising job openings to subset of facebook users) Applicant’s lack of social media presence? Some states have enacted laws specifically prohibiting employers from requesting and accessing applicants’ password-protected social media sites

Criminal History Checks No general prohibition on obtaining criminal background information EEOC warns against using criminal background information in discriminatory way E.g., policy or practice that has disparate impact on individuals of a particular race or national origin

Criminal History Checks PA Criminal History Record Information Act May consider felony and misdemeanor convictions only if they relate to the applicant’s suitability for the position Must provide written notice when a decision not to hire is based on criminal history record information

Form I-9 Process

Immigration Reform and Control Act of 1986 IRCA requires all US employers to complete Form I-9 for each new employee US Citizenship and Immigration Services (USCIS) website provides electronic forms IRCA also has its own discrimination prohibitions

I-9 Forms By the third day after the employee begins work, employer must: Review documents evidencing identity and employment authorization; and Complete and sign Form I-9 Acceptable documents are listed on Form I-9; employers may not request specific documents Employers may be required to re-verify (i.e., employee with expiring employment authorization document)

Wage and Hour Classification

Fair Labor Standards Act Under the Fair Labor Standards Act (FLSA), covered employers must pay nonexempt employees no less than minimum wage, and 1.5 times their hourly wage for overtime. Exempt employees are make a guaranteed salary, regardless of how many hours they work. It is critical to properly classify your employees at the outset of their employment.

Determining Employee Exemption from Overtime Primary Duties Test Employee’s primary duties must meet the requirements of an exemption category Salary Basis Test Employee must receive full salary for any week in which he/she performs work, regardless of number of hours worked Salary Level Test $455/week ($23,660 annually) . . . for now

Exemption Categories Executive Exemption Administrative Exemption Learned Professional Exemption Computer Exemption Commissioned Salesperson Exemption Outside Salesperson Exemption

Tips to Avoid Misclassification Review duties and salary Do not rely solely on employee’s job description or job title Exempt status is not about education level or “prestige” of position Review state law exemption criteria as well

Questions?

Allison L. Feldstein Allison has represented management in employment-related and traditional labor matters for almost 20 years.  She regularly defends employers before administrative agencies and state and federal courts in claims involving employment discrimination, retaliation, retaliatory discharge, harassment, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), state and federal wage and hour laws (including FLSA collective actions), and restrictive covenants.  In addition to her employment-related experience, Allison regularly represents management in traditional labor matters, including representation and unfair labor practice cases before the National Labor Relations Board; negotiates collective bargaining agreements; provides counseling during strike and picketing activity; and represents employers in grievance arbitration.  Allison also works proactively with clients to avoid litigation, providing counseling regarding employee discipline and termination decisions, accommodation requests, harassment investigations, workplace violence, wage and hour issues, leaves of absence, reductions in force, restrictive covenants, and union representation and strike and picketing activity.  Allison has written and presented extensively on a variety of labor and employment issues. Partner Pittsburgh Office 412.209.2533 allison.feldstein@saul.com

Lindsey C. Kennedy Lindsey is a labor and employment attorney who assists employers with matters involving discrimination, accommodations, leave, pay and other issues. Her experience includes both counseling and litigation involving federal, state, and local laws governing the workplace. She also provides counseling on personnel issues such as employee discipline and termination, accommodations requests and internal investigations as well as representation before various agencies such as the EEOC. In addition, she helps employers proactively address labor and employment matters by drafting and updating employee handbooks, providing training and drafting and negotiating employment agreements. Associate Pittsburgh Office 412.209.2555 lindsey.kennedy@saul.com

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