Hot HR FAQs

1. Are employers permitted to run background checks on job applicants by outside agencies?

Yes. Employers may run background checks on applicants conducted by an outside agency provided certain requirements of the federal Fair Credit Reporting Act (FCRA) are met. Employers must obtain the applicant's written permission to obtain a report. Prior to the background check being conducted, employers must provide information to the applicant that includes:

• Purpose

• Type of background check being performed

• Summary of the applicant's right to see and to copy reports

Employers are required to provide a copy of the report before an "adverse action" (not hiring the individual, for example) is taken. Employers who do not run backgournd checks risk "negligent hiring". Negligent hiring comes about when an employee is responsible for injuring another person (violence), embezzles from the company, etc. and the employer would have known about about an employee's propensity for such is the employer would have checked the applicant's background.

It is recommended that background checks be "post-offer", "pre-employment," and that the offer of employment is made contingent upon satisfactorily passing the background check.

2. Must employers extend a job offer before requiring applicants to undergo a pre-employment drug test?

While the Americans with Disabilities Act (ADA) does not prohibit pre-employment drug testing before a job offer is extended, other restrictions may apply, such as an organization’s personnel policies.  Public employers may also face greater limitations with the use of such tests.  Therefore, it is recommended that pre-employment drug tests be administered only after an employment offer has been made.  And offers should be conditioned upon a candidate passing the drug test.  Such a practice would not only reduce liability, but also testing costs.  Additionally, an applicant should be scheduled to begin work only after successfully completing the drug test.   

3. When an employee tests positive for alcohol or drug use on the job, how is a referral to the Employee Assistance Program (EAP) "voluntary" if the alternative is termination for violating the policy? Aren't we forcing the employee to go?

Referral to the EAP in lieu of disciplinary action for violating the company drug-free workplace policy is an accommodation for an employee who may have an addictive disease, although few employees see it this way initially.  The hope is that the employee will accept help, enter recover, remain abstinent, and stay employed. At first glance, this process may appear coercive and forced, but it is still voluntary. This is because failure to go to the EAP triggers disciplinary action based upon violating the policy, not failure to accept help. Although the referral may meet the requirements under the law, as in the case of the U.S. Department of Transportation regulations pertaining to drug testing, it is still based upon the possible existence of addictive illness.  It is less likely that a person will initially view an EAP referral as an accommodation, if that person does not believe alcoholism or drug addictions are truly health care problems. 

4. An employee had a back injury, missed time and was released to light duty. While the employee was working on light duty, he injured his hand, missed time and was released to light duty for the hand injury. I know that both injuries need to be recorded on the log, but I am not sure how the lost time should be handled.

Treat the lost time as if these are 2 separate employees. While he returned on "light duty" for his back injury and then injured his hand - count the days lost for the hand injury, but if his back still wasn't better at this time and the doctor has him on "light duty" for his back, you must count those same days and log on the back injury case as restricted duty days (even though he was completely out on lost time for the hand injury!).  So, the same employee is accumulating days as if he were 2 separate people, because these are 2 separate cases.

It gets better - When he has reported back to work on "light duty" for the hand, and is still on "light duty" for the back injury, employer must continue to double entry the days as if he were 2  separate employees. When the employee gets a release to "full duty" for either injury, then stop recording for that case, and continue to record "restricted days" for the other injury until the employee reaches full duty status for that one too.

5. How long does the company have to keep EEO charges after the claim is dismissed, settled or litigated?

There is no law or legal requirement that they keep these records for a specific amount of time.  However, it is recommended that the file be kept for as long as the plaintiff, accused, or witnesses are still employed plus 5 years.  At a minimum, it should be kept for 4 years after the plaintiff leaves the employ of the company because 4 years is the statute of limitations on torts.  This enables the company to have a record to refer back to in case additional charges involving the same accused happen again.  Caution:  Keeping these documents could be detrimental to a company in a court case because they have a history of this happening, but the defense attorney can work around that and prefers to have the company keep the record.

6. How should I report an employee's wages if the employee provided a false Social Security Number (SSN)?

First, attempt to re-verify the SSN, since it might be wrong because of a typo, or the employee’s handwriting may have been bad. If you still cannot obtain a valid SSN or other appropriate documentation, simply report the wages on the W-2 and indicate that the SSN is unknown. If you enter this information through computer software that does not offer an “unknown” option, you may leave this box _blank or enter all zeros, depending on what the software system will allow. When an employee receives a W-2 form, the instructions direct the employee to inform the employer of any discrepancies.

7. What should we do if we discover an incorrect SSN after we've already reported some or all of the employee's wages?

Again, attempt to re-verify the SSN. The Social Security Administration (SSA) requires an employer to file a W-2c, or statement of Corrected Income and Tax Amount, if it has reported wages under an incorrect SSN. File the W-2c with the SSA as soon as possible to avoid penalties imposed by the Internal Revenue Service. If you cannot obtain a valid number, you should still notify the SSA that the original number was incorrect.

For additional information on the SSN verification process, you can visit the Social Security Administration website at www.ssa.gov.

8. What is our obligation regarding unsolicited resumes?

It depends on whether those who sent you the unsolicited résumés are “applicants” (a term with legal significance) or merely people looking for a job.  Whether individuals are “applicants” will depend on how your company handles unsolicited résumés.  Employers with a policy of not considering unsolicited résumés need not treat such job-seekers as “applicants” and have no duties or obligations toward them. However, once you begin choosing among unsolicited résumés, they all should be considered applicants.  Certain obligations kick in, such as the obligation to handle all unsolicited candidates as you would handle solicited candidates.  If you rank solicited candidates in a certain way, you should rank unsolicited candidates the same way. Develop a system for handling résumés and applications that will help you distinguish between applicants and mere job-seekers. Apply that system in a consistent, nondiscriminatory manner.  You can decide when and under what circumstances you will accept applications. 

9. Can I ask follow up questions of a job candidate if he or she volunteers information that is normally "off limits"?

Once a prospective employee has opened the door to an otherwise impermissible subject, you’re not free to ask whatever you want on that subject.  So, even if a candidate volunteers that he has 3 children, you can’t ask about child care arrangements.  Bottom line:  The more you learn about the candidate on such issues, the more difficult it will be for you to convince a judge or jury that you did not use that information in making your hiring decision.

10. How do I know if a person's condition qualifies for leave under the Family and Medical Leave Act (FMLA)?

The threshold question to address concerning leaves under the FMLA is whether the employer is covered by the FMLA and whether the employee has enough service with the company to be eligible for a leave under the FMLA. Assuming those two criteria are met, then there are generally six (6) types of leaves covered by the FMLA: 1) childbirth; 2) adoption or foster care; 3) an employee’s own serious health condition; 4) a serious health condition of an employee’s family member (parent, spouse or child); 5) military leave for qualifying exigency; and 6) leave to care for a military servicemember with a serious health condition. Although an employer is not expected to be a “mind reader”, as noted by one court, it is expected that an employer must exercise due diligence and make timely inquiry for the underlying reason(s) for an employee’s absence from work to determine whether the employee’s “leave” is covered under FMLA even where the employee has failed to disclose it or did not intend to request the absence to be covered under FMLA.

11. Is an employee on leave under the Family and Medical Leave Act (FMLA) entitled to holiday pay?

According to the U.S. Department of Labor's regulations, the answer to this question depends on the company policy. For example, if an organization gives employees holiday pay while they are on paid leave (i.e., vacation), the employee would be entitled to holiday pay when substituting paid leave for unpaid FMLA leave. Remember, unpaid FMLA leave can run concurrently with a company-provided paid leave, such as vacation, short-term disability or sick leave. However, if employees on unpaid leave are not allowed holiday per company policy, then those on unpaid FMLA leave (i.e., leave that is not running concurrently with paid leave) would not be entitled to holiday pay.  In addition, FMLA regulations state that a week containing a holiday has no effect on counting FMLA leave usage--it is counted as a week of FMLA leave.

There is one exception: If an employer's business activities temporarily cease and employees generally are not expected to work for one or more weeks for a facility-wide holiday shutdown, those week(s) do not count against an employee's FMLA leave entitlement.

12. How frequently must I provide "breaks" to my employees?

Federal law does not require an employer to give a “break” from work to its employees. However, the length of any break provided, as well as the release of the employee from work duties will determine whether or not such “rest periods” are to be counted as compensable or “paid” time. The Department of Labor (DOL) provides guidance that rest periods of short duration, in other words, from 5 to about 20 minutes, are customarily paid as working time and must be counted as “hours worked” towards overtime calculation.  “Rest periods” or “breaks” for periods longer than 20 minutes are not normally counted as “paid” or compensable time so long as the employee is free to go where they please and can use the rest period for their own purposes. "Ordinarily, 30 minutes ore more is long enough for a bona fide meal period.  A shorter period may be long enough under special conditions."

Consult your state's governing agency to determine specific break/meal periods in your area.

13. How do we pay for an employee's work-related travel time out of the city and during part of the weekend?

If the employee is exempt, then the salary paid will cover all hours worked regardless of travel status and hours outside the normal workday or workweek.  However, if the employee is non-exempt, then such time spent traveling away from home, including overnight travel, is likely to be deemed time worked and therefore compensable.  Whether travel time is compensable for a non-exempt employee turns on various factors such as the mode of travel, whether the travel time is during the employee’s normal working hours or during non-working hours and whether the employee is required to work at the time that he or she is in transit. Of course, the safest way to handle this question is to pay a non-exempt employee for work related travel time during non-working hours, however, there may be legal exceptions to having to pay the travel time. Consult legal counsel on this issue to be certain of whether the travel time is compensable or non-compensable.

14. If an employee has filed for benefits under our medical insurance plan and stated that he was "permanently and totally disabled," do I still have to worry about a potential discrimination claim for disability?

Perhaps. The Supreme Court in Cleveland v. Policy Management Systems Corp. ruled that applying for disability benefits does not automatically bar an employee from also filing a discrimination suit based upon disability status.  However, in a recent decision, the Supreme Court noted that the employee is still required “to proffer a reasonable explanation for his inconsistent statements”.  In other words, it would be in your best interest to make appropriate inquiries and to document facts surrounding or incidental to an employee’s claim for statutory (Social Security or Workers' Comp) or medical benefits (short term/long term disability) which would support an ultimate conclusion that the employee is incapable of performing the essential functions of his/her job, whether with or without reasonable accommodation.

15. I have an employee who is habitually tardy, but she says that it is because of her "bipolar disorder" which had been diagnosed by her doctor. Since punctuality is a critical requirement for our operation, is there anything I can do?

The employee’s medical condition may be a recognized disability under the Americans with Disabilities Act (ADA), therefore you, as the employer, may need to provide a reasonable accommodation to the employee in light of her covered disability.  Notwithstanding the employee’s medical condition, however, an employee’s ability to report for work on time is viewed by the courts as an essential function of a job. Therefore, your obligation is to initiate a dialogue with the employee to determine if there is a “reasonable accommodation” that would allow her to arrive at work on time and in a reliable fashion.  If not, then termination may be appropriate since the employee is no longer “qualified” for his/her position. This assumes, of course, that reporting to work on time is a legitimate job requirement/qualification and is administered in a uniform and consistent fashion to the workforce, or at least, to comparable positions. Also, this could be considered intermittent leave under FMLA and that should be discussed with the employee.

16. I have read articles about the Microsoft case where temporary workers successfully sued for benefits given to regular employees. Do I have to provide our company's full fringe of employee benefits to temporary employees?

No. However to protect the company, it is important to properly classify different types of workers and to clearly publish the employee benefits or entitlements for specific positions or to be provided for a particular type of employee.  Furthermore, it is urged that an immediate review and critique be taken of your various employee benefits plans to ensure that the language is clear as to what type workers are covered, but equally important,  clear as to which type of workers are excluded from coverage.  Keep in mind that well worded job descriptions, clear and simple personnel policies and well-drafted benefit plans will prevent unwarranted assumptions or expectations and may preclude a later claim for coverage or benefits by a worker. However, the title you give to a position or what you call a worker, for example, “temp”, “contingent”, “contract”, etc., will not relieve an employer of statutory obligation for individuals who satisfy other statutory tests that will determine “employee” status for purposes of the statute. For example, an employer, by law, is still required to pay such “employees” minimum wage and overtime, and it may have to pay for withholding taxes, unemployment compensation and workers’ compensation coverage. Remember that the government will presume that all of your workers are your “employees”. Stringent tests are imposed which you are required to meet if you take a position to the contrary. Again, consult with your labor counsel on these complex issues since the consequences of mis-classifying a worker can be quite expensive.

17. I've heard that there is a discrimination claim available for "paramour preference." What is this talking about?

The term “paramour preference” refers to a type of claim under Title VII. It is a variation of sexual harassment is based on sexual preference or favoritism by the employer or its managerial agent.  The claim can be made by employees who believe that they have been treated less favorably than a fellow employee who has used or provided sexual favors to advance him/herself in the workplace.  The 11th Circuit Court of Appeals which controls Florida has flatly rejected claims of paramour preference under Title VII. The EEOC’s regulations, however, do provide that a qualified employee who is denied an employment opportunity or benefit, which is given instead to an employee who submits to the employer’s sexual advances may state a claim under Title VII. On a practical level, it is recommended that the potential impact of office romances, and the associated perception of “paramour preference” be treated under your organization’s ongoing program for training on anti-discrimination. This program and associated personnel policies and procedures should consist, at the least, of a strong sexual harassment policy, coupled with non-fraternization rules/guidelines. It may also be appropriate to publish  nepotism rules and to provide for “consensual-relationship agreements” to be executed by romantically involved employees under the right circumstances.

18. Is there such a thing as "youth discrimination"?

Recently state courts in New Jersey and Michigan have found that employees treated differently than others due to being “too young” were allowed to bring a discrimination action under the state anti-discrimination laws. The federal age discrimination employment Act (ADEA) only protects individuals over the age of 40.

However, some states, such as New Jersey, Michigan & Florida civil rights acts provides no such minimum threshold for “protected” status. Thus, a claim of “age discrimination” in such states conceivably could be made if the factual circumstances revealed the employee’s age, whether too old or too young, was the determinative factor for the employment decision.