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TIP OF THE DAY – 10 FRIENDLY QUESTIONS YOU SHOULDN’T ASK

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.

IN THE NEWS – RESTAURANT CHAIN PAYS $1MILLION SETTLEMENT TO MALE SERVERS, BARTENDERS AND JOB APPLICANTS

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.

EMPLOYER ALERT — SUMMER JOBS FOR TEENS

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: http://www.myflorida.com/dbpr/reg/documents/child_labor_laws 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: http://www.osha.gov/SLTC/teenworkers/employers.html

TIP OF THE DAY – EMPLOYEES ON JURY DUTY

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.

IN THE NEWS – EEOC HOLDS MULTIPLE COMPANIES LIABLE ON JOINT EMPLOYER THEORY

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: http://www.eeoc.gov/press/5-5-08.html.

TIP OF THE DAY – PROBATIONARY PERIOD FOR NEW HIRES

Many employers question the need for a probationary period for new hires, since Florida is an “employment at will” state.

One good reason to establish a 90-day probationary period is to protect the company from rate increases caused by unnecessary unemployment claims. “Employment at will” means that you can discharge an employee at any time with or without good cause, as long as you don’t run afoul of federal or state discrimination laws and whistleblower protections. However, employees who are terminated for legitimate business reasons where no employee misconduct is involved do qualify for unemployment compensation benefits. The exception to this is termination of employment during an established, initial 90-day probationary period that the employee was advised of at the time of hire.

Have new employees sign an acknowledgement that they are subject to a 90-day probationary period and will not become regular employees until the period is completed. This protects your company from rate increases resulting from unemployment compensation benefits paid to newly-hired employees who simply were not a good fit, or were let go for unsatisfactory performance in the first 90 days.

TIP OF THE DAY – PROBATIONARY PERIOD FOR NEW HIRES

Many employers question the need for a probationary period for new hires, since Florida is an “employment at will” state.

One good reason to establish a 90-day probationary period is to protect the company from rate increases caused by unnecessary unemployment claims. “Employment at will” means that you can discharge an employee at any time with or without good cause, as long as you don’t run afoul of federal or state discrimination laws and whistleblower protections. However, employees who are terminated for legitimate business reasons where no employee misconduct is involved do qualify for unemployment compensation benefits. The exception to this is termination of employment during an established, initial 90-day probationary period that the employee was advised of at the time of hire.

Have new employees sign an acknowledgement that they are subject to a 90-day probationary period and will not become regular employees until the period is completed. This protects your company from rate increases resulting from unemployment compensation benefits paid to newly-hired employees who simply were not a good fit, or were let go for unsatisfactory performance in the first 90 days.

EMPLOYER ALERT – FMLA COVERAGE EXPANDED

The Family and Medical Leave Act provides for 12-weeks of unpaid leave for individuals working for companies with 50 or more employees. New legislation has expanded the total amount of leave to 26 weeks for any employee who is the spouse, son, daughter, parent or “next of kin” of a member of the armed forces who needs care resulting from a serious injury or illness incurred while on active duty.

The expanded leave may only be used during a single 12-month period, and the 26 weeks is cumulative to standard FMLA. Accordingly, an employee who uses 12 weeks of FMLA leave for their own medical condition, would have a balance of 14 weeks of expanded leave to use for a relative in the armed forces during that same 12-month period. The addition of the term “next of kin” applies only to this expanded leave, and is defined by the FMLA as “closest blood relative.”

In related news . . .

The Department of Labor (“DOL”) recently proposed a number of changes to the FMLA regulations. Key changes that would benefit employers include the following:

Medical Certifications: The new regulations would allow employers, under limited circumstances, to directly contact the employer’s health care provider for clarification or authentication of FMLA medical certification forms. Employers would still have to comply with the privacy requirements of HIPAA, but would no longer be frustrated by medical certifications which, in the DOL’s words, are “vague, ambiguous or non-responsive.”

Continuing Treatment: Employees with a serious health condition requiring continuing treatment but no prescribed medication would have to receive follow-up care from their health care provider within 30 days of the initial visit to qualify under FMLA.

Notice Requirements Tightened: The open-ended notice requirement for employees who become aware of the need for FMLA leave less than 30 days from the anticipated commencement of the leave would be shortened to the same day or next business day.

Fitness-for-Duty: The current FMLA regulations severely limit the circumstances under which an employer can require a “fitness-for-duty” certification from a returning employee’s health care provider. The new regulations would increase employer rights in demanding fitness-for-duty certificates, and also expand the type of information an employer can require.

These proposed regulations are currently under review while the DOL considers comments that have been received from the public and various advocacy groups.