1. 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

2. 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

3. 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

4. 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

5. 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

6. Application, Interview, and Hiring Inquiries

7. 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

8. 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

9. 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!

10. 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”

11. 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

12. 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

13. 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)

14. 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

15. 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?”

16. 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

17. 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

18. Background Checks

19. 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

20. 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

21. 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)

22. 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)

23. 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

24. 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

25. 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

26. 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

27. Form I-9 Process

28. 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

29. 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)

30. Wage and Hour Classification

31. 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.

32. 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

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

34. 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

35. Questions?

36. 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

37. 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

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