Tag Archives: McGrath North Labor attorney Abbey Moland

Interviewing Applicants: How To Avoid The Pitfalls

Interview PitfallsEmployee interviews can provide a valuable means for employers to learn about a prospective employee, but the process can also be fraught with legal minefields. For example, consider a lawsuit that was filed in federal court against Wal-Mart Stores. In that case, the interviewer asked the applicant “What current or past medical problems might limit your ability to do the job?” Although not apparent to the interviewer at that time, the applicant’s right arm below his elbow had been amputated and he had been fitted with a cosmetic prosthetic device. The applicant was not offered the job and he filed suit under the Americans with Disabilities Act. The jury awarded the Plaintiff $157,500 because the Wal-Mart interviewer asked an illegal question. This award included $100,000 in punitive damages for the unlawful inquiry, $50,000 in punitive damages for discriminatory failure to hire, and $7,500 in compensatory damages.

Most employers already know that questions concerning an interviewee’s race, color, creed, religion, national origin, ancestry, sex, union membership, sexual orientation, marital status, disability or age are unlawful and off limits during the interview process. The exception to this rule is where the attribute is central to the job. For example, you may ask a candidate about their religion if you are a religious organization and the job requires the teaching of the principles of your particular religion.

While avoiding unlawful subjects seems easy enough, it’s not always obvious what questions might be construed as inappropriate or elicit information relating to an applicant’s protected status that may subject an employer to liability. For example, the following questions or similar questions (or observations), while seemingly benign, are improper and tend to elicit information that the interviewer is not entitled to:

  • What year did you graduate from high school? (This is an improper request for age-related information. If necessary, you may confirm that the individual is over 18, but the age-related inquiries must end there.);
  • Are you a U.S. citizen? (Questions relating to citizenship are prohibited unless the position specifically requires one to be a U.S. citizen and the job posting states as such.);
  • Do you have children? Can you get a babysitter on short notice for overtime or travel? (Stay away from questions targeting family or marital status-related information and may be construed as gender discrimination.);
  • Have you ever been arrested? (Questions about arrests and convictions that are NOT substantially related to the particular job are off-limits.);
  • Is this your maiden name? (This sort of request is improper as it seeks marital status information.);
  • How much longer do you plan to work before you retire? (Again, this request would tend to elicit age-related information and could communicate a preference for younger workers.);
  • Do you have any impairments that may affect your performance in the position? (This is an improper request for disability-related information.)

With respect to individuals with disabilities or medical conditions, an employer should not ask questions relating to the employee’s medical status until after a conditional job offer is made. (Note the article by Steve Bogue in this issue regarding what constitutes a “real” job offer under the ADA.) An employment offer to an individual with a medical condition, for example, can be withdrawn if it becomes clear that the individual cannot perform the essential functions of the job, with or without an accommodation, or the individual would pose a direct threat (a significant risk of substantial harm to themselves or others in the workplace).

In order to avoid potential pitfalls that can expose a company to liability, employers should also take a strategic and preventative approach to minimize the risk posed by the recruitment process and hiring decisions, including:

  1. Adopt an Equal Employment Opportunity/Harassment Policy.
  2. Reserve the right to evaluate and confirm all information supplied by the applicant and condition employment upon truthful information supplied by the applicant.
  3. Provide applicants with notice of their at-will employment status and the Company’s policies regarding working hours, overtime, drugs and alcohol, unlawful solicitation and other essential policies.
  4. Establish written job descriptions setting forth the qualifications for all positions including the physical requirements for the job.
  5. Only ask standardized, job-related questions. Stay away from topics that are not relevant to the job or the candidate’s qualifications.
  6. Ensure that interviewers are consistent in their questioning of candidates. Train your interviewers as to what questions may lawfully be asked during the hiring process and how to redirect the conversation when an applicant volunteers “off limits” information.
  7. Finally, have an experienced labor/employment lawyer review your hiring materials and employment policies.

Our Firm’s employment lawyers can “audit” your Company’s hiring practices and procedures to insure they are in compliance with the law and legitimate inquiries are made to choose the best candidate for the position.

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Employer Off-Duty, No-Access Rules: The NLRB Flops Again!

Many employers have policies that prohibit employees from hanging around the facility before or after working hours. Often, these policies are adopted as a mechanism for ensuring security of the facility, providing a distraction-free workplace, and preventing employees from working off the clock.

As innocuous as off-duty access policies may seem, the National Labor Relations Board (the “NLRB”) continues to target employers who maintain and enforce policies which, in its view, stifle an employee’s right to engage in protected, concerted activity under the National Labor Relations Act (the “NLRA”) (typically referred to as “Section 7 rights”). Simply put, an employer cannot implement an off-duty no access rule that limits an employee’s right to engage in union activity. This applies to union and non-union employers alike.

For nearly 40 years, the NLRB has maintained the same three-part test to determine the legality of off-duty employee access rules. The purpose of the test, originally articulated by the NLRB in Tri-County Medical Center, 222 NLRB 1089 (1976), is to balance the property interests of an employer against the employees’ Section 7 rights. The NLRB will find an off-duty employee access policy lawful only if it:

  1. limits access solely with respect to the interior of the facility and other working areas;
  2. is clearly disseminated to all employees; and
  3. applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activities.

A series of recent decisions by the NLRB interpreting the third element of the Tri-County Medical test further demonstrates the substantial limitations placed on employers for controlling off-duty employee access to the workplace.

In St. John’s Health Center, 357 NLRB No. 170 (2011), the NLRB found that a healthcare provider violated the NLRA by implementing a rule that limited off-duty employee access to the workplace, except “to attend Health center sponsored events, such as retirement parties and baby showers.” The Board interpreted this policy to mean “[i]n effect, the [employer] is telling its employees, you may not enter the premises after your shift except when we say you can.”

Similarly, in Sodexo America LLC, 358 NLRB No. 79 (2012), the NLRB considered a hospital’s rule that prohibited both its own off-duty employees and its contractors’ off-duty employees from entering or reentering the interior of the hospital or any other work area outside the hospital, but provided for three exceptions: (1) to visit a patient, (2) to receive medical treatment, and (3) to conduct hospital-related business.

The Board concluded that the hospital’s first two exceptions (which permitted off-duty access by employees for purposes of visiting a patient or receiving medical treatment) did not violate the NLRA because access pursuant to these exceptions was unrelated to the employees’ employment and because that access was sought as members of the public rather than as employees.

Notwithstanding, the NLRB concluded that hospital’s third exception to its prohibition against off-duty access for “hospital related business” was unlawful because it essentially allowed the employer “free rein to set the terms of off-duty employee access.”

On November 19, 2014, following the U.S. Supreme Court’s Noel Canning decision, which effectively vacated the 2012 Sodexo opinion, a 3-member Board reconsidered that decision. This time, the Board “reversed” a portion of its 2012 opinion and instead held that the hospital’s policy exception for conducting “hospital-related business” was lawful.

Crucial to its analysis was the fact that the hospital had narrowly and expressly defined “hospital-related business” as “the pursuit of the employee’s normal duties or duties as specifically directed by management”. In other words, the NLRB concluded that the provision was not really an exception to the policy but a clarification that employees who were not working their regular shifts but were nevertheless performing their duties as employees under the direction of management could access the facility.

The NLRB found that although these employees would be “off duty” (i.e. not working their regular shifts) by the policy’s definition, they are “on duty” under the term’s ordinary meaning. Thus, the Board concluded that provision allowing access for hospital-related business does not violate the Tri-County Medical third element that a valid no-access rule must apply to off-duty access for all purposes.

The Board majority distinguished the lawful Sodexo policy from one found to be unlawful in St. John’s Health Center, which allowed access for “[h]ealth center sponsored events, such as retirement parties and baby showers,” because there was no indication that employees would be paid or considered to be working during these events.

Finding a coherent takeaway from these recent Board decisions is admittedly a challenge. The rule in St. John’s Health Center, gave no indication that employees would be paid or considered to be working during these company-sponsored events. Because of this, the Board apparently concluded that this in effect gave the employer unlimited discretion to permit off-duty employee access simply by sponsoring an event. The off-duty “exception” in the Sodexo case, however, covered only employees who would understand themselves to be “on duty”. In short, it seems the lawfulness of employer off-duty access policies will hinge on the amount of discretion an employer has in determining when an employee is “on duty” and thus; permitted to access the facility.

Despite the ongoing confusion in the NLRB’s application of the Tri-County Medical test and seemingly contradictory opinions concerning this rule, employers should review their current off-duty access policies and eliminate, to the extent possible, the use of employer discretion in granting employees off-duty access, including any exceptions for “employer-sponsored” events and “employer-approved” purposes.

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What happens in Vegas, Stays in Vegas, But May Also Be Covered By FMLA

Can a vacation to Las Vegas be covered by FMLA? According to the Seventh Circuit Court of Appeals, if an employee can prove he or she was providing care to a disabled family member while gallivanting in casinos, that employee will qualify for FMLA leave.

Among other things, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave to care for the employee’s spouse, child, or parent who has a serious health condition.

In the past, Courts have generally required that care to take place at home. For example, in Tellis v. Alaska Airlines, Inc., the Ninth Circuit declined to extend FMLA protections to an employee who flew cross-country to pick up a car and drive it back to his pregnant wife. The court held that “caring for a family member with a serious health condition `involves some level of participation in ongoing treatment of that condition.’” (See also, Tayag v. Lahey Clinic Hosp., Inc., where the First Circuit considered whether an employee who took leave to accompany her seriously ill husband on a “healing pilgrimage” to the Philippines qualified for leave under the FMLA).

A recent decision by the Seventh Circuit, however, broadens the scope of allowable FMLA absences. In Ballard v. Chicago Park District, a Chicago Park District employee, Beverly Ballard, lived with and provided daily care to her mother who suffered from end-stage congestive heart failure. The employee’s mother was terminally ill and receiving hospice support. As part of that support, her mother met with a social worker to discuss end-of-life plans. The employee’s mother expressed that she had always wanted to take a family trip to Las Vegas and consequently, the social worker was able to secure funding for a six-day trip.

The employee requested unpaid leave from her employer in order to accompany her mother on the trip and the two traveled to Las Vegas where the employee continued to serve as her mother’s caregiver. Several months later, the employee was terminated for accumulating unauthorized absences during the Las Vegas trip.

The employee sued under the FMLA and the employer filed for summary judgment, arguing that the employee did not “care for” her mother in Las Vegas, because (1) she was already providing care at home, and (2) because the trip was unrelated to the mother’s continuing course of medical treatment. After the District Court denied the employer’s motion, the employer appealed.

The Court of Appeals affirmed the District Court’s ruling and found that because the employee tended to her mother’s basic medical, hygienic and nutritional needs during the Las Vegas trip, she was entitled to FMLA leave. The Court’s decision centered on the fact that the FMLA regulations do not set forth any geographical limits on where such care could be provided.

In justifying its divergence with the First and Ninth Circuits, the Seventh Circuit held that “none of the cases explain why certain services provided to a family member at home should be considered ‘care,’ but those same services provided away from home should not be.”

The Court also dismissed the employer’s concerns that such an interpretation of the FMLA regulations would result in abuse of FMLA’s leave provisions. In so holding, the Court stated:

“[The Park District] also raises the specter that employees will help themselves to (unpaid) FMLA leave in order to take personal vacations, simply by bringing seriously ill family members along. So perhaps what the Park District means to argue is that the real reason Beverly requested leave was in order to take a free pleasure trip, and not in order to care for her mother . . . However, we note that an employer concerned about the risk that employees will abuse the FMLA’s leave provisions may of course require that requests be certified by the family member’s health care provider.”

The Ballard case signals a need for all employers and their HR representatives to take a different approach to certain FMLA leave requests. From a practical standpoint, if presented with an employee’s FMLA request to care for a family member during a vacation, employers may want to consider requiring that the employee provide the following information as part of their request to ferret out potential FMLA abuse:

– Whether the primary purpose of the trip is for personal or medical reasons;

– Whether a healthcare provider certified the trip is part of the treatment associated with the family member’s serious health condition; and

– Whether the employee will be providing any care to the family member during the trip

As always, employers are also advised to approach each FMLA leave request on a case-by-case basis and contact counsel when questions arise regarding the validity of an FMLA leave request.

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