Wyche at Work: February 2013 Employment Update

Prepared by Ted Gentry
February 2013

Hiring Highlights

As experts cautiously track the economy and job growth trends, your company may find itself in the position of recruiting and interviewing more applicants for job openings.  Interviewing applicants – already a challenging task – takes on even more weight in light of the Equal Employment Opportunity Commission’s recently announced goal of eliminating barriers in recruiting and hiring. What used to be considered polite conversation may now result in claims of discrimination by the applicant. Consequently, HR personnel and managers should be well-trained on what topics to avoid in an interview.

Interviewing guidelines commence with one simple proposition: avoid asking any questions that would prompt the applicant to provide any information about a protected characteristic, such as age, religion, and national origin. For example, asking an applicant how old he is or whether she is pregnant would be an obvious misstep. The difficulties begin when an interviewer asks questions that might indirectly reveal protected information. For example, asking the applicant what year he graduated from college could allow the interviewer, by performing simple math, to estimate the applicant’s age.

The following are generally some questions to avoid in the interview process:

  • Age or date of birth
  • Where the applicant was born
  • Dates of school attendance
  • Church or religious organization, or the name of the applicant’s priest, rabbi or minister
  • Whether applicant would need time off for religious services or holidays
  • How applicant spends his/her free time and what clubs he/she belongs to
  • Last names of the applicant’s parents
  • Maiden name of a female applicant
  • Family status: marital status; how many children and their ages; childcare arrangements, if applicable; who resides with applicant; spouse’s name and employment status; where a spouse or parent works; spouse’s annual income; family medical history
  • Why the applicant is not married, if marital status is known
  • Whether applicant owns or rents his/her residence
  • Name of applicant’s bank or any information regarding loans outstanding
  • Whether applicant has filed for bankruptcy or had wages garnished
  • Whether applicant has been arrested
  • What foreign languages the applicant can speak, read or write, unless job related
  • Whether the applicant supports unionization or was a union member
  • Whether the applicant has filed workers’ compensation claims
  • How the applicant feels about co-workers or supervisors who are of a different race or members of a protected class
  • Whether applicant requires particular medical benefits
  • Whether applicant has a disability, in general or one that would affect the ability to perform the essential functions of the job
  • Applicant’s current health or past illnesses or injuries or workers’ compensation history
  • Applicant’s current prescriptions
  • How many sick days applicant took in the previous year

Please let us know if you need help tailoring your interview questions to comply with anti-discrimination laws.

Antitrust Division Targets Anti-Poaching Agreements

In a previous edition of Wyche at Work, we discussed some precautions employers should take to determine whether an applicant is subject to any confidentiality or non-competition agreements with a previous employer that would interfere with the new job duties. On a related front, anti-poaching agreements – where companies agree with each other not to recruit or hire each other’s employees – are getting increased attention from federal antitrust regulators. The U.S. Department of Justice recently brought civil antitrust actions against eBay, Inc. for entering into such an agreement with a competitor, claiming that the agreement hurt employees by lowering the salaries and benefits they might have received and deprived them of better job opportunities. Anti-poaching agreements must be carefully tailored to define acceptable limitations. If we can help with any agreements you may be considering with competitors, please let us know.

DOL Marks 20th Anniversary of FMLA

The Department of Labor celebrated the 20th anniversary of the Family and Medical Leave Act earlier this month by publishing a final rule expanding two FMLA protections:

  • Families of eligible veterans will have the same job-protected FMLA leave currently available to families of military service members; and
  • Airline personnel and flight crews may qualify more easily for FMLA protection due to amendments in how hours are counted for eligibility.

In conjunction with the new rule, the DOL also updated the FMLA poster that all covered employers are required to display. Employers may start using the poster now but it must be posted by March 8, 2013, the effective date of the final rule. Also, make sure you are using revised FMLA forms for employees requesting leave.

Finally, the DOL released a survey on the use and impact of the FMLA. We were surprised to learn that the majority of employers reported that the FMLA has either no noticeable effect or a positive effect on business operations like employee absenteeism, turnover and morale.

Speaking of Posters…

While on the topic of the updated FMLA poster, we thought it would be a good time to remind employers to make sure that current versions of required workplace posters are posted conspicuously. Posters required for South Carolina employers are available on the S.C. Department of Labor, Licensing and Regulation website or can be ordered free of charge from the state agencies listed on the website.

Also, you may recall from our December 2012 Wyche at Work, South Carolina’s Right to Work Law Enhancement provides that employers may post a notice entitled “Your Rights as a Worker in South Carolina,” informing employees of state laws guaranteeing that a person’s right to work must not be denied because of membership, or non-membership, in a labor union.This notice is not required.

Posters required by Federal law are available on the Department of Labor’s website. Note that Federal Contractors are subject to additional notice requirements. The DOL also offers its elaws FirstStep Poster Advisor to walk employers through the process of determining exactly which posters are required. All posters are either available in pdf format (in English and Spanish) on the DOL website or can be ordered at no cost from the DOL. Don’t forget the Participation Poster and Right to Work Poster required of all employers who use E-Verify, which should be virtually all South Carolina employers.

National Entrepreneurship Week

February 16-23 marked the 7th Annual National Entrepreneurship Week. To encourage entrepreneurship, the Small Business Administration has prepared a helpful list of South Carolina and Federal online resources for small businesses. Wyche attorneys are experienced in employment matters, as well as corporate and entrepreneur services for start-ups and small businesses, so please give us a call if we can help.

If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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