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Many employers are looking at social networking sites like MySpace and Facebook for additional information in screening job applicants. The conventional wisdom has been that searching for and reviewing these sites can provide useful information about an applicant’s judgment and character. Have they been blogging about frequently calling off work at their last job after a long night of partying? Do their photos and comments indicate a lifestyle of excessive alcohol consumption or use of illegal drugs? Have they “trashed” their previous employer online? Are they posting the sort of photographs that you would find embarrassing if one of your customers “Googled” their name as a representative of your company?

All of the foregoing is information that certainly could be relevant to your hiring decision. But when does information obtained online become “too much information,” placing your company at risk?

This issue is discussed at length by Lester Rosen, head of a California-based national background screening company, in a two-part series published in Recruiting Trends®, an online newsletter for HR professionals. Mr. Rosen cautions that privacy issues may be involved if you or your background screener access these sites by setting up a cover identity, and that in some circumstances Fair Credit Reporting Act notifications may be required by law for including review of these sites in a background investigation.

The most troubling issue noted in the article, however, is that reviewing an applicant’s social networking site may give you information about their disability, age, race, national origin, religion, sexual preference or other characteristics which of course can not be considered in making employment decisions. If you decide not to hire the individual, they may assume that you have discriminated against them based on that information. Mr. Rosen’s article appears at


The EEOC reports that disability discrimination claims increased by 14% last year, and now account for one out of every five discrimination charges filed against private employers. In the past year, the EEOC settled two cases against national retailer Wal-Mart. In the most recent case, Wal-Mart paid $250,000 in damages and agreed to provide training to its supervisors in a case involving failure to provide a reasonable accommodation to a pharmacist who was disabled from an earlier gunshot wound. In the other case, Wal-Mart paid $300,000 to settle a claim that it failed to hire a job applicant because she has cerebral palsy. Because the ADA applies to all businesses with 15 or more employees, small employers are equally at risk for claims, and the financial impact of a significant settlement or jury verdict can be devastating.

Protect your company from liability by following these guidelines:

  • Make sure job descriptions include the “essential functions” of the job, and leave out extraneous duties that could eliminate a disabled applicant from consideration.
  • Do not include requirements such as lifting, standing, etc. unless they really are essential to the job.
  • Avoid descriptions that favor a particular manner of performing physical tasks. For example, use “communicate with” instead of “speak with,” and “move” between locations instead of “walk” between locations.
  • In interviews, do not ask questions about a disability. Focus instead on the essential functions of the job. Ask all applicants – not just those who appear outwardly to have a disability – whether they can perform the essential functions of the job.
  • If a current employee requests a reasonable accommodation under the ADA, give careful consideration before making a decision. You are not required to provide the specific accommodation requested by the employee, nor are you required to provide an accommodation when doing so would cause an undue hardship on your company. You are also not required to eliminate an essential function of the job, or create a new job for the employee. However, you are required to provide a reasonable accommodation which would enable the employee with a disability to perform the essential functions of the job.


Legislation is currently pending in the House of Representatives which would allow employers to offer “comp time” in lieu of overtime for nonexempt employees working in excess of 40 hours per week. Titled “The Family-Friendly Workplace Act,” the bill would give employees the option receiving one-and-one-half hours of paid leave for every hour worked over 40 in a given week, instead of receiving time-and-one-half overtime pay. Currently, the Fair Labor Standards Act (“the FLSA”) prohibits private-sector comp time, permitting only federal government employees to receive time off in lieu of overtime pay.

Comp time legislation resurfaces every few years, but its proponents have never been successful in bringing about a change in the FLSA. Critics – primarily labor unions and employee advocacy groups – argue that providing an alternative to mandated overtime payments would be subject to abuse, and employees’ elections to receive time off in lieu of pay might be coerced rather than voluntary.

Representative Cathy McMorris Rodgers (R-WA), the sponsor of the current bill, feels differently. In her recent press release, she states:

“Time is one of our most precious resources. We all want more of it and yet we only have 24 hours in a day. That means we have to figure out how to work a full day, run errands, pack lunches, make dinner and spend quality time with our kids, spouse, or elderly parent,. Giving employees more flexibility in their workweek is key to increasing retention as well as attracting great employees that will help increase our country’s competitiveness.”

The ability to offer comp time would provide welcome flexibility for employers and employees alike, particularly in the small business arena. Whether this bill has any better chance of succeeding than its predecessors remains to be seen.


Because Florida is an “employment at will” state, an employer does not need “good cause” to terminate an employee. An employee terminated without good cause, however, will be entitled to receive unemployment compensation benefits. Because the number of claims awarded to your former employees has a direct impact on increases to your company’s unemployment compensation insurance premium, you should take steps to ensure that benefits are not awarded to employees who were fired for misconduct.

An employee who is terminated because their performance is not up to your standards, or because they are simply unable to perform the job, is entitled to benefits. Likewise, an employee whose excessive absenteeism is a result of a health issue is eligible for benefits. However, an employee who repeatedly, after warning, violates company policy is not entitled to unemployment compensation. That behavior qualifies as misconduct under the statute.

The key issue in unemployment compensation hearings (conducted when the employee applies for benefits and the company contests their entitlement) involving policy violations is whether the employee had notice that their behavior was unacceptable and was warned that future violations could result in termination. The best evidence you can present is a written warning, signed by the employee.

Remember to do the following:

(1) Put a warning in writing so that there is no dispute about what information was given to the employee.

(2) Note in the warning whether the employee has been verbally counseled for the same behavior in the past.

(3) State whether the conduct violates a company policy, and identify that policy.

(4) Have all employees sign a form acknowledging that they have received, understand and will abide by company policies.

(5) Have the employee sign the written warning, acknowledging receipt of it. You can include a space for the employee to make a statement if they disagree with the warning.

By following these steps, you can protect your company from being charger higher unemployment compensation premiums as a result of benefits awarded to former employees who continued to willfully violate company policy after repeated warnings.


President Bush signed legislation on Wednesday, May 21 making it illegal for employers to refuse to hire, fail to promote, or discharge employees based on the results of genetic testing. The Genetic Information Nondiscrimination Act of 2008 protects individuals whose test results reveal a propensity for a certain type of medical condition, or identify that person as a carrier for a genetically transmitted disease or disorder, from having that information used to deny them either employment or insurance coverage.

There are already genetic tests available that predict the future onset of Huntington’s disease, and a predisposition toward various forms of cancer. Genetic tests identify whether a person is a carrier for Tay-Sachs disease or Sickle Cell Anemia. Other genetic tests predict the likely effectiveness of various forms of drug treatments for conditions such as heart disease, asthma and cancer, providing a valuable aid to doctors in determining a personalized course of treatment. Researchers are currently developing genetic tests that will identify risk factors for a wide range of conditions, including Alzheimer’s disease, various forms of mental illness, heart disease and diabetes. Preventative genetic testing has the potential to assist many people in lifestyle changes that could delay, reduce or even stop altogether the onset of these conditions.

The problem in the workplace is that this information could also be used to screen employees, weeding out individuals who are statistically more likely to cause a disproportionate burden on the company’s health insurance plan, or be less productive in the future due to the need for medical leave. Until this week, the law was unclear and often contradictory on the issue of what, if any, use of this information was acceptable in the employment arena. Although the EEOC has taken the position that genetic predisposition to certain diseases qualifies as a disability protected under the Americans with Disabilities Act, courts had not uniformly adopted that view. Various states enacted laws in this area (Florida, for example, has a statute prohibiting employment discrimination based on the presence of the sickle-cell trait, but requires only that the individual receive notice that any other results of genetic testing were used as the basis for denial of insurance coverage or employment).

This new law will at least provide uniformity in the restriction of use of genetic testing results in the employment context, and hopefully pave the way to a healthier workforce through personalized preventative measures.


A job interview is an opportunity to get to know the candidate on a personal level, and assess whether he or she will be a good fit in your organization. Often, however, friendly questions asked with the best of intentions stray into a protected area, causing the candidate to reveal information about their age, health, marital status, sexual orientation,* national origin or religion that, by law, cannot be considered in the hiring process. When that candidate is not offered the job, they may well make assumptions about your decision-making process that are completely incorrect, and you could be in the position of defending yourself and your company from allegations that the failure to hire was discriminatory.

Friendly questions that seem harmless on their face but can get you into trouble include the following:

  1. River City, huh? My cousin went to high school there. What year did you graduate?

  2. So, you’re new to the area. Do you need any help finding out about schools or churches?

  3. I see from your resume that you’ve got over 30 years experience. How long are you planning to work before you retire?

  4. You got married recently – congratulations! Are you planning to have kids?

  5. That’s a very unusual name. What nationality is that?

  6. Some of us are on a company softball team –I bet you’d be a great addition. Could we count on you?

  7. Being here on time is important to us. As a single parent, do you think your childcare responsibilities will interfere with your attendance?

  8. How do you feel about reporting to a (younger/female) supervisor?

  9. I couldn’t help noticing your accent. Are you from the Middle East? What do you think about what’s going on over there?

  10. Would you be relocating here yourself, or do you have a spouse or significant other who’d be coming with you?

None of these questions are necessarily asked with bad intentions. Each of them, however, has the potential for either eliciting information about membership in a protected class that would not otherwise be apparent pre-hiring, or creating the impression that certain protected characteristics are preferred over others in an employee.

By training your supervisory employees on proper interviewing, you can avoid unnecessary exposure to claims that your hiring practices are discriminatory.

*Although sexual orientation is not a protected class under federal law or Florida state law, numerous counties and municipalities have adopted ordinances which prohibit employment discrimination based on sexual orientation.


Hiring preferences based on gender can result in significant liability for your company, as illustrated by a recent federal court case filed against Razzoo’s Cajun Café, a Texas-based restaurant chain. As part of its image, Razzoo’s told restaurant managers to maintain an 80/20 ratio of women to men bartenders. This resulted in a low number of male servers who were promoted to work behind the bar, and low hire rates for male job applicants. Even those men who were promoted to bartender were excluded from working at the high-paying “girls only” bartending events. The company’s website depicts servers and bartenders predominantly as young, attractive women, with only an occasional male employee shown.

The EEOC filed suit under Title VII on behalf of the male servers, bartenders and job applicants, and settled the case last week for $1 million, primarily to be distributed among the affected applicants and employees. A portion of the settlement proceeds is also earmarked to establish company-wide HR policies and training to prevent future gender-based discrimination.

The lesson to be learned from this case is that efforts to create a marketing image do not excuse excluding employees based on gender. The same principle applies to age, race, disability, religion and national origin. Caution should also be used not to bring preconceived notions about the stereotypical applicant best suited for the job into the interviewing and hiring process.


Employment of teens under age 18 can provide a valuable summer work experience for students and an enthusiastic addition to your workforce. Be wary, though, of running afoul of federal and state laws that regulate the ages, hours and type of work performed by minors. More stringent rules regarding hours worked apply during the school year.

Some facts you should know about summer employment of teens:

  • If you employ any minors (under age 18), you must conspicuously display a poster that notifies them of the Child Labor Laws. Posters are available from the Florida Department of Business and Professional Regulation, and may be downloaded at: poster_legal.pdf

  • All employees under age 18 must be given a 30-minute break after every 4 hours of work.

  • Children under 14 years old cannot be employed, except in the performing arts, newspaper delivery, baby-sitting, as legislative pages, or in a non-hazardous family business.

  • Teens age 14 and 15 cannot work more than 40 hours per week, and cannot work after 9:00 p.m.

  • Restrictions on the type of work done by 14 and 15-year-olds include the following. They may not: operate any power-driven machinery (including power mowers and cutters) other than office machines; use meat grinders, vegetable slicers, food choppers or bakery mixers; do cooking and baking (some exceptions); load or unload trucks; operate motor vehicles; conduct door-to-door sales; do spray painting; or work in construction.

  • Restriction on the type of work done by 16 and 17-year-olds include the following: They may not: operate motor vehicles; use forklifts or similar equipment; work on scaffolding, roofs or ladders over 6 feet; operate circular saws or band saws; use power-driven meat and vegetable slicers or a variety of other power-driven machinery; or work with electrical apparatus or wiring.

Penalties for violations of the Florida child labor laws include fines of $2,500 per offense, and criminal prosecution. Federal fines can be assessed at $11,000 per minor per violation. In addition, under Florida’s workers compensation statute, an employer may be charged double the compensation otherwise payable if an injured teen was employed in violation of any of these laws.

The best practice is to know the restrictions that apply, and make sure appropriate safety procedures are followed.

Additional information about summer safety for teen employees is available from the Department of Labor at:


What is your responsibility when an employee is summoned for jury duty? Under both federal law and Florida state law, an employee cannot be fired, threatened with termination or otherwise retaliated against based on their service on a jury, or the length of such service. Violate these laws and your company – and individual managers as well – could be held in contempt of court and fined. Additionally, the aggrieved employee can sue the company to recover lost wages, other compensatory damages, punitive damages and attorney’s fees.

Although you are not required to pay employees during jury service, if you do choose to pay employees you must notify them of any limitations on pay before jury service begins.

The best practice is to have a clear provision in your employee handbook stating your policy on whether jury duty is paid or unpaid leave, and explaining any limitations. (For example, some policies provide for paid leave for a specified number of days, and unpaid leave thereafter.) Require employees to notify the company when they are summoned, and provide updates as to the anticipated length of service. Under certain circumstances, an employee can be excused from jury duty if their absence would cause a hardship to the employer or the employee.


The EEOC announced last week a $1.65 million settlement in a case involving a primary contractor and four subcontractors, holding each company liable under a “joint employer” theory for racial harassment that occurred at a construction site. The key question was not which company actually employed the harassers; instead, the EEOC looked at whether supervisors in each company were aware of the harassment and failed to take appropriate action to stop it.

EEOC District Director Marie Tomasso commented: “Employers risk intervention by the EEOC when supervisors ignore racially offensive working conditions and fail to take prompt and effective remedial action to stop it.” Blatantly offensive conduct at this construction site included derogatory racial comments directed toward black employees, use of the “n-word,” repeated references to the Ku Klux Klan, and, in one instance, a noose suspended from a beam.

Although this case is an extreme example of workplace harassment, the lesson to all employers is to take immediate corrective action when an employee first complaints about a racially hostile work environment, regardless of whether your company has primary responsibility for the worksite. Harassment – whether it emanates from your own employees, a vendor, a contractor or a customer of your company, and regardless of whether it occurs in an office setting or out in the field – must be dealt with swiftly and effectively.

For additional information on this case, see: