An employment application should not include any questions that will produce a response that would indicate an applicant’s protected class such as age, race, national origin, disability, etc. Such inquiries may be used as evidence of an employer’s intent to discriminate, unless the questions asked can be justified by some business purpose of the employer.
It’s important to note that Information needed to conduct background checks should be obtained on a separate form authorizing the employer to conduct the check.
Some common inquiries to avoid on your application are:
Birth dates: Making inquiries about an applicant’s birth date can give the perception that the employer is using age as a decision-making factor in the hiring process. If federal law or the employer’s state law requires a minimum age for employment for certain occupations, then the employer can ask applicants if they are at least the minimum age required for employment.
Graduation dates: Making inquiries of an applicant’s school graduation date can reveal an applicant’s age. To obtain information on whether an applicant holds a degree or a diploma, the employer can simply ask if the applicant has graduated and what degree was obtained.
Military discharge information: Questions that are relevant to work experience and training received are permissible. However, an employer should not ask an applicant the reason he or she was discharged from the military or request to see military discharge papers, except when directly related to the job or to determine veteran’s preference.
Race inquiries: An applicant’s race or color should not be asked on an employment application. Some employers may track their applicants’ race for affirmative action plans or compliance with the Uniform Guidelines on Employee Selection Procedures, but this should be done apart from an application. This information is not used in the selection process and is voluntary for the applicant.
Citizenship: Inquiries about an individual’s citizenship or county of birth are prohibited and can be perceived as discrimination on the basis the individual’s national origin. An employer can inquire if an applicant is legally eligible to work in the United States and inform the applicant that proof of his or her eligibility to work in the United States must be provided if selected for hire.
Maiden name, Miss, Mrs. and Ms.: Many states prohibit marital status discrimination, making any questions related to that status possible evidence of discriminatory hiring practices.
Social Security number: Although asking applicants for their Social Security numbers is not unlawful, requesting this information from applicants is not recommended due to identity theft and privacy concerns. Employers do not need this information until it is time to run a background check or complete a W-4; therefore, including it on an application carries unnecessary risk.
Salary History: Some states prohibit an employer from requesting salary history information from candidates. These laws are designed to promote greater pay equality by forcing employers to develop salary offers based on job requirements and market pay levels.
Both state and federal labor law posters are required for businesses. If a business has one or more employees, it is required by the law to post federal, state and OSHA mandatory posters. More specifically, the following six postings must appear in each workplace location: federal minimum wage, Employee Polygraph Protection, OSHA, FMLA, USERRA, and EEO. You may purchase them individually or together on an all-in-one labor law poster.
Where should Posters Be Placed?
Labor law posters should be displayed somewhere apparent to all employees on a daily basis, such as a break room or main lobby. If you have multiple locations, then each workplace should display its own posters.
When Are Posters Not Needed?
Although it is recommended, the following types of businesses do not need to post labor law posters:
- Sole Proprietor without employees
- Businesses with only contract employees
- Businesses with an all-volunteer work force
- Family owned business where ALL employees are related
Do my posters need to be multilingual?
If you have a business that is located in Arizona, California, Florida, Georgia, New Mexico, North Carolina, New York or Texas you will have to post both Spanish and English versions of the posters. If your business is not in one of these states, then it is not mandatory for you to display the bilingual posters; however, it is a smart thing to do if you employee Spanish-speaking workers.
Do I have to change my posters every year?
The frequency of Labor Laws varies by state. Employers must change posters when the State, Federal or OSHA agencies make legislative or regulatory changes. The most expected update to occur is state minimum wage rates.
What is the penalty for failing to display Labor Law posters?
Federal and State fines are imposed by various agencies. These fines may vary.
- Federal FMLA $100 per offense.
- For failing to post the Federal OSHA Poster - A civil penalty of up to $7,000 may occur.
Unsure if you are compliant? Need help finding the forms, posters, or guidance? Contact your HR Advisor today!
During the holiday season, employers are often faced with employee time off requests, holiday pay, and planning holiday parties. Here are some tips for managing these issues during the holiday season.
Managing Time-Off Requests
The holidays are a popular time for employees to request time off. To help maintain adequate staffing, consider granting time off based on seniority, a first-come first-served basis, scheduling needs, or a combination of these factors. Or, consider establishing blackout periods when employees may not take vacation, or provide employees with incentives to take time off during less desirable times of the year. Whatever strategy you use, train supervisors and apply your policy consistently.
Under federal law, employers with 15 or more employees are generally required to provide reasonable accommodations for employees' sincerely held religious beliefs and practices, unless doing so would impose an undue hardship. This may include providing unpaid time off. The EEOC suggests best practices for providing religious accommodations, such as facilitating voluntary shift swaps and permitting flexible scheduling.
Private employers are generally not required to provide paid holidays to hourly non-exempt employees, unless the employer has promised otherwise (in another policy or handbook). If you close for a holiday but do not offer paid holidays, hourly employees are generally not entitled to pay. However, salaried employees must still receive their full salary, as long as they work any part of the workweek.
During the holiday season, some employers see an increase in the number of employees calling in sick, particularly before and after a company holiday.
To help reduce unnecessary absences, some employers require hourly non-exempt employees to work the day before and after a company holiday in order to receive holiday pay, unless they have scheduled the time off in advance. Employers may not apply such a policy to salaried exempt employees.
If you plan on hosting a holiday party, consider the following:
Insurance coverage: Check with your insurance provider to determine what your coverage and liabilities may be during the party. For example, if an employee is injured during a company-sponsored event, he or she may be covered under your workers' compensation plan. Such coverage may depend on a variety of factors, including when and where the injury occurred.
Pay: If you plan to host the party during work hours, employees will likely be entitled to pay for time spent at the party. Generally, attendance should be voluntary and employees should not be pressured to attend or disciplined for failing to attend.
Serving Alcohol: Prior to the party, consider consulting legal counsel regarding the potential liability for serving alcohol at company events. If you prohibit alcohol, remind supervisors and employees well in advance of the party. If alcoholic beverages will be served, limit intake and ensure there is plenty of food as well as non-alcoholic beverages available.
Reinforce code of conduct and expectations: Prior to the event, remind employees that they must act responsibly and that you will enforce workplace rules, such as dress codes and anti-harassment policies, regardless of whether the party is held during work hours or on company premises. Managers and supervisors who attend the party should monitor the event and enforce company rules on a consistent basis.
To help manage your workplace obligations during the holidays, plan ahead and have clear policies and procedures in place.
Employers have a legal responsibility to protect their employees from a range of dangers and under occupational health and safety legislation, the onus is on employers to carry out due diligence by conducting workplace hazard assessments and implementing effective control measures to remedy any hazards that might have been identified as part of this process.
If you were on the witness stand and the government attorneys are asking you about your safety program, compliance and enforcement, could you answer the following with confidence?
- Are you familiar with your company’s safety program?
- Do you discipline employees for not following the rules of your safety program? How can you prove that to us?
- Do you conduct periodic safety audits (unannounced of course) to ensure employees are following your safety program and being safe? Why not? Isn’t safety important to you? How about compliance?
4 Things You Need Before Tragedy Strikes…
- Safety Program
This is more than a general safety statement in your employee handbook! Create a separate safety handbook that emphasizes the hazards your employees encounter most often. Make sure the policy is readable, understandable, and accessible to your employees. Get your supervisors on board with fully embracing the policy and its enforcement.
- Safety Training
Who does your safety training? Are they qualified? Do you give safety training both at point of hire and recurring? Classroom training alone is not enough, demonstrations are key. Practice emergencies and rescues.
The BEST Safety Program and the BEST Safety Training will fail without enforcement! If you are not writing up your employees and supervisors for failing to follow the safety program and training, you cannot show that you take safety seriously. Maintain a separate safety violations file.
Do you have regularly scheduled auditing of your safety program? If you do, your employees will always appear to be following your safety program, because they expect you, and you are actively observing! Random, unannounced is the only way to go. This is critical to having an effective workplace safety program.
For nearly 30 years Homer Simpson has been a big part of Sector 7-G at the Springfield Nuclear Power Plant. We can only assume the plant’s billionaire owner, C. Montgomery Burns did not have a very thorough background process. We’ve seen Homer involved in countless accidents, that have even resulted in the death of a co-worker. (Rest in Peace Frank Grimes.)
It’s not just pre-employment background checks that Mr. Burns (or any employer) should be concerned about. Employment Background Checks should be done annually to ensure the safety and well-being of everyone on the team. Pre-employment screenings are encouraged to avoid any potential problems, but as time goes on, you never know what issues may develop. Case in point…
While making the rounds one day at the plant, Homer is distracted and crashes his cart into a radioactive pipe. This action led to his immediate dismissal. However, Homer can be a convincing guy and after promising to clean up his act (and expose the plant) he is hired back as a safety supervisor.
But don’t let that title fool you. A more consistent watch of Homer by Mr. Burns and his management team would recognize more inconsistencies in safety. Homer has fallen asleep on the job more than once. One time his mid-afternoon nap resulted in him pressing the self-destruct button on the T-437 Safety Console he is supposed to be manning.
We’ve seen Homer steal from the workplace too. He has a collection of items that still have the Property of Springfield Nuclear Power Plant stamped on them. Homer has also been quoted as saying, “Another day, another box of stolen pens.” It’s this kind of behavior that could be quelled with better supervision and the use of annual background checks on current employees.
Homer’s work ethic seems to be lacking too. He’s never stayed particularly loyal to Mr. Burns. Homer has tried his hand at being an astronaut, a country music producer/manager and a voice over artist for a cartoon dog named Poochie. Could Mr. Burns just be desperate for the cheap labor or are their redeemable qualities in having Homer Simpson on the payroll that we’re not seeing?
We d’ohn’t want you to make the same mistakes Mr. Burns has made with his hiring of Homer Simpson. MBI Worldwide’s motto is Good Screening is SMART Business.
For quick, compliant and reliable background checks, contact MBI Worldwide at 1-866-275-4624.