Job Ads Distributed to Younger Recruits May Be Discriminatory

Q.  My company wants to target on-line recruitment ads for certain jobs to specific age groups. Is that legal?

A.  In most circumstances, the answer is no. Unless an employee’s age is a bona fide occupational qualification (i.e., hiring an applicant under a certain age is reasonably related to an essential operation of the business), a policy targeting recruits under an age limit likely will be considered age discrimination.

The Age Discrimination in Employment Act (ADEA) states that, generally, it is unlawful for employment notices or advertisements to include age preferences, limitations, or specifications.  Thus, advertisements that state that the company is seeking applicants who are “age 25 to 35” or “recent college graduates,” for example, violate the ADEA. Employers also may not base hiring decisions on stereotypes about a person because of his or her age.  Likewise, an employer may not use an employment test that excludes older applicants unless the test is based on reasonable factors other than age.

But, what if, instead of soliciting a certain age group in the text of the advertisement, the company uses technology, such as micro-targeting, to limit the population receiving the job ad? In a recent class action case filed in Northern California, a group of plaintiffs claimed that such a practice also violated ADEA. The plaintiffs sued several large companies and a defendant class of “hundreds of major American employers and employment agencies,” claiming that the companies used Facebook’s ad platform to routinely exclude older workers from receiving their recruiting ads on Facebook, “thus denying older workers job opportunities.”  The lawsuit seeks to certify a class of older applicants who were excluded from receiving employment ads, and seeks injunctive and monetary relief for what it calls a pattern and practice of age discrimination.

The class action is in the early stages, and it will be interesting to see whether the court agrees with plaintiffs’ argument that using technology to limit the pool of applicants to certain age groups is discriminatory.  In the meantime, employers should take heed and avoid targeting younger recruits, both on the face of the job ads and by limiting the population receiving them, absent a bona fide occupational reason to do so.

–Tracey E. Diamond

Pitfalls and Best Practices When Hiring for the Summer Season

Q: I hire seasonal employees for the summer.  Are there any particular considerations I should be aware of?

A: Seasonal employees can provide much needed support during the summer months.  However, there are certain issues to consider.  First, it is important to clarify upfront that employees are only expected to work for the summer, while at the same time reminding employees that the relationship is at-will and can be ended at any time by either party.

Another issue to consider is benefits. Many employers do not provide seasonal employees benefits other than what is legally mandated.  That practice is fine from a legal standpoint so long as it is applied consistently.  In terms of legally mandated benefits, it is essential for employers to understand which benefits apply to seasonal employees.  In certain circumstances, larger employers may be required to offer certain seasonal employees health benefits under the Affordable Care Act.  Moreover, depending on the jurisdiction, seasonal employees may be eligible for paid sick leave.

In New York City, for example, most employers have to allow employees who work more than 80 hours in a calendar year to accrue sick leave. While sick leave begins to accrue on the first day of employment, however, employees may not use sick leave until 120 days after the start of employment.  Thus, most seasonal workers will accrue sick leave, but will not be employed long enough to actually use it.  In contrast, Philadelphia’s sick leave law explicitly excludes seasonal workers, who are defined as people who have been hired for a temporary period of not more than sixteen weeks during a calendar year.

Seasonal employees also would be eligible for worker’s compensation benefits and potentially may be eligible for unemployment insurance benefits.

In addition to the benefits issues, employers also should be aware that seasonal employees are subject to the same wage and hour laws as other employees. Under federal law, non-exempt employees (whether seasonal or not) must be paid overtime for hours worked over 40 in a week.  Employers should be sure to be in compliance with state law requirements for overtime, as well as meal and rest breaks.

For employers who organize summer company events, such as barbeques, if attendance is mandatory, employees (including seasonal employees) should be compensated for their time. If attendance is truly voluntary, then employees who attend the event do not need to be compensated for their time. Consider establishing guidelines for appropriate employee conduct at such social events, particularly if they include alcohol.

Finally, while it may be tempting for employers to bypass the standard hiring and orientation processes for seasonal employees, it is crucial that seasonal employees are given policies and training in key areas, such as non-discrimination and harassment. In particular, employers should emphasize policies on sexual harassment, as well as other forms of harassment, and make clear that their policies apply equally to both seasonal and non-seasonal employees.  In addition to ensuring seasonal employees themselves are trained on such policies, it is also important for all employees to understand that seasonal employees are covered by the policies.  Employers who employ seasonal employees should consider revising their written policies so that seasonal employees are specifically included in the list of individuals protected and subject to anti-harassment policies, as well as EEO policies more generally.

Jessica Rothenberg

Philadelphia Employers May Not Ask Wage History Questions Under New Ordinance

Q.  My company is based in Philadelphia.  We often set salaries for new employees based on the applicant’s wage history.  Are we still permitted to do this?

A.  Effective May 23, 2017, a new Philadelphia Ordinance makes it unlawful for employers in Philadelphia to inquire about a prospective employee’s wage history or require disclosure of wage history as a condition of employment.  The law was passed to encourage employers to base salary offers on the job responsibilities of the position sought, rather than on the applicant’s prior wages.  Employers will no longer be able to rely on the wage history of a prospective employee when determining the wages of that individual, unless the individual knowingly and willingly disclosed his or her wage history to the employer.

To ensure compliance with the Ordinance, employers who do business in Philadelphia should start thinking about revising their employment applications to delete any questions inquiring about an applicant’s wage history.  Recruiters, HR personnel and managers will need to be trained about the new law so that these individuals know not to ask wage-based questions during the interview process.  In addition, employers should consider revising their EEO policies to add wage history to the list of protected categories.

-Tracey E. Diamond

 

 

 

 

Background Checks in the Era of Ban the Box

Q: What does it mean to “ban-the-box,” and how does it affect our hiring process?

 A: Ban-the-box legislation is quickly spreading throughout state and local jurisdictions.  Even if your jurisdiction has not adopted such legislation yet, it is likely that it will do so in the not-so-distant future. Therefore, it is vital to understand both the rationale behind the legislation and how it will affect your organization’s hiring processes.

The “box” that is the subject of so much controversy is the commonly used checkbox on job application forms that asks whether an applicant has a prior criminal record. Limiting an employer’s access to a prospective employee’s criminal history at the initial stage of the hiring process is thought to decrease the likelihood that an employer will discriminate against an ex-offender, thereby reducing employment barriers for those individuals.

Ban-the-box laws attempt to effectuate this policy goal by limiting (1) what can be asked of applicants prior to hiring, (2) when inquiries into criminal history can be made, and (3) the type and age of offenses that may be considered by employers in making hiring decisions. Some research studies have suggested that “banning the box” has resulted in the unintended consequence of broader discrimination against minority applicants because of employer bias that such applicants are more likely to be ex-offenders.

Nevertheless, the movement continues to gain momentum. Recently, Connecticut joined the State of New Jersey, New York City, Philadelphia and many other states, cities and localities in enacting ban-the-box legislation for private employers.  In addition, President Obama has banned the box by prohibiting federal agencies from inquiring into the criminal record of an applicant until the final phase of the application process.

It is important to note, however, that ban-the-box laws do not prohibit employers from ever inquiring into the criminal history of applicants. The laws concentrate on when and in what manner such inquiries may be made.  The Philadelphia ordinance, for example, permits employers to inquire into an applicant’s criminal history after a conditional offer of employment has been made.  The employer is then required to engage in an individualized assessment of the applicant, which includes consideration of the nature of the offense, the time that has passed since the offense, the particular duties of the job being sought, evidence of rehabilitation, previous employment history, and any character references provided by the applicant.  In contrast, the New Jersey ban-the-box law allows an employer to inquire into criminal history after the applicant’s first interview.  The New Jersey law is also much narrower than the Philadelphia ordinance; other than the timing requirement, it only prohibits an employer from considering expunged convictions and does not require that employers undertake any “individualized” assessment of the applicant’s conviction history.

Even if your jurisdiction has not yet been affected by ban-the-box, it is wise to begin adjusting your hiring procedures now so that you are prepared once such legislation arrives. At minimum, employers should make the following changes:

  • Remove the “box,” i.e., eliminate questions regarding criminal history from employment applications.
  • Ensure compliance with the federal Fair Credit Reporting Act , which requires disclosure and consent before running a criminal background check, as well as disclosures before taking any adverse action because of the results of the background check,
  • Train managers on what they can and can’t ask during job interviews. Where “ban the box” is in effect, questions regarding an applicant’s criminal history, whether oral or in writing, should be asked only when permitted by the applicable statute.
  • Take action to eliminate any unconscious bias against certain demographic groups in the recruiting process.
  •  Keep abreast of pending ban-the-box legislation in your jurisdiction; once enacted, such legislation might place limitations on how an applicant’s criminal history may be considered in the hiring process.

– Tracey E. Diamond and Laura Kleinberg