The Law at Work: Preparing for the summer season
As summer approaches, many Cape employers begin their hiring processes and some may begin hiring before properly preparing for interviews and the application process. The following article identifies topics every employer should understand to avoid potential liability associated with interviews and applications.
INTERVIEWS
Certain classes of applicants and employees are protected from discrimination in the employment process. In Massachusetts, these protected classes include age (40 and older), disability, national origin/ancestry/citizenship, race/color, religion, gender (male and female) and sexual orientation. Generally, employers may not ask questions either directly or indirectly to determine
whether individuals are members of any of these protected classes. Below are examples of permissible and
impermissible questions for interviews:
PERMISSIBLE:
Are you under the age of 18, yes or no? (Other questions may be permitted if necessary to satisfy state or federal law provisions.)
IMPERMISSIBLE:
What year did you graduate from high school?
PERMISSIBLE:
Are you able to perform the essential functions of the job with or without accommodation?
IMPERMISSIBLE:
What is your disability or how severe are your limitations?
PERMISSIBLE:
Are you legally authorized to work in the United States?
IMPERMISSIBLE:
Where were you and your parents born?
What is your ethnicity or race?
PERMISSIBLE:
Are you able to work the hours in the shift
for which you are applying?
IMPERMISSIBLE:
What religious holidays do you observe?
Questions regarding gender are only permissible if they relate to a bona fide occupational qualification (for example, a female for a matron’s position in a ladies’ restroom).
APPLICATIONS/TESTING
Every applicant should be asked to complete an application and certify that the information provided is complete and accurate. Three topics that employers are often interested in learning from applications are criminal history, prior work performance
and fitness to perform the job.
These topics can be traps for the unwary if applications are not properly drafted.
Criminal History
To request information regarding the applicant’s criminal history, the application should be worded as follows and the language in italics must be included:
1. Have you been convicted of a felony?
Yes or no?
2. Have you been convicted of a misdemeanor within the past five years (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace)? Yes or no?
3. Have you completed a period of incarceration within the past five years for any misdemeanor (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance
of the peace)? Yes or no?
4. If the answer to question No. 3 above is "yes," please state whether you were convicted more than five years ago for any offense (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace)? Yes or no?
An applicant for employment with a sealed record on file with the Commonwealth of Massachusetts Office of the Commissioner of Probation may answer “No record” with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. In addition, an applicant for employment may answer “No record” with respect to any inquiry relative to prior arrests, court appearances and adjudications in all cases of delinquency or as a child in need of services that did not result in a complaint transferred to the Superior Court for criminal prosecution. You may not require applicants to provide their criminal records, but you may obtain limited information by making a request to the Massachusetts Criminal History Systems Board.
Medical Examinations
Once an offer of employment has been made, an employer may condition that offer on the results of a medical exam conducted solely for the purpose of determining whether the employee is capable of performing the essential functions of the job, with or without accommodation. If a medical exam is required, it must be required of everyone applying for specific classes of jobs (i.e., all office workers may be excluded, but all construction workers are required to submit to an exam). A medical examination should be sufficient to show that the employee is capable of doing the job, and employers are not permitted make other inquiry into the medical history of an applicant. For example, an employer may not request information regarding an applicant’s or an employee’s previous workers’ compensation claims as it is unlawful to discriminate against individuals because they have filed claims in the past.
ELIGIBILITY TO WORK
As an employer, you are required to verify the identity and authorization to work in the United States of all your employees when they are hired, even if they only work part-time. Verification is obtained with a Form I-9.
The following requirements apply to the completion of an I-9:
■ Provide a Form I-9 to every employee on the first day of work.
■ The employee must complete the Section 1 by the close of business.
■ Complete Section 2 no later than close of business on the employee’s third day of work.
■ You may request only certain documents.
■ You must accept the documents provided unless the documentation does not reasonably appear to be genuine. You then can request another form of documentation.
■ You must maintain the documents in your files for three years after the date of hire or one year after the employee’s termination, whichever date is later.
The Social Security Administration maintains a toll-free phone number (800-772-6270) that allows employers to verify up to five Social Security numbers at once. The verification process lets you know if the individual’s name “matches” the Social Security number being used by him or her. A “mismatch” does not automatically mean that you should refuse to hire or fire the individual.
WAGES
In order to determine how many employees to hire, employers must carefully assess the costs associated with additional
employees. The following tips relating to minimum wage and overtime requirements are provided to assist employers in their planning.
■ The minimum wage currently is $7.50 an hour. On January 1, 2008, it increases to $8 an hour.
■ You must pay overtime wages at a rate of time-and-one-half the nonexempt employee’s regular hourly rate for hours worked in excess of 40 hours in one work week.
■ Overtime compensation for extra hours worked in a single day is not required except in certain specified cases.
■ State and federal law provides numerous exemptions from overtime pay requirements; you should consult with an employment attorney to determine if any of your workers are covered by any of these exemptions.
■ Overtime pay requirements do not apply to an employee who works during a period or accumulated periods that do not exceed 120 days in one year and who is determined by a division of the Attorney General’s office to be seasonal in
nature.
■ Penalties associated with employer’s failure to comply with the wage and hour laws are significant. In addition to criminal penalties, employees may sue their employer, and the officers and managers of their employer, for three times the unpaid overtime compensation and attorney’s fees.
■ Exempt employees usually fall into four categories: executive, administrative, professional or outside salesperson.
Among the qualifications is a paid salary of $455 per week or $23,660 a year.
OTHER HIRING TIPS
■ Never ask for a photograph to accompany an application.
■ Do not inspect a driver’s license until you make a formal job offer, and only then if the employee provides a driver’s license as a form of identification under the Form I-9 process.
■ Include a warning on applications that if an applicant answers falsely, he or she will be subject to immediate discharge.
■ Be careful about obtaining form applications online as the form may not be compliant with Massachusetts law.
■ Prepare a list of questions for interviews that you ask of every applicant to avoid accidentally stumbling into impermissible inquiries.
■ Be sure everyone who interacts with an applicant, including managers and potential co-workers, are familiar with the protected classes and questions to avoid.
■ If you are interviewing an applicant who begins volunteering information that you know is protected, immediately interrupt and explain that you are not interested in learning that information.
■ Be sure to verify the identity and employment eligibility of all employees by providing a Form I-9 on the
first day of hire.
Beth O’Neal, Esq., is a partner in the Boston law firm of Masterman, Culbert & Tully LLP. She can be reached at meo@mctlaw.com.
Send questions to law@capebusiness.net or The Law at Work, Cape Business, 704 Main St. (Route 6A), Dennis, MA 02631
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Published in Cape Business May/June 2007
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