Category: Hiring

August 8, 2017

Don’t Ask These Questions During Job Interviews

Various federal and state laws affect what questions employers may ask during job interviews. These laws are designed to prevent employment discrimination.

Here are some questions that you should NOT ask in most cases. There are many more, some of which depend on what state or locality you are in because laws differ.

Prohibited Questions

Age

How old are you?
What is your date of birth?
When did you graduate high school?

Disability

Do you have a disability?
Have you ever had a drug or alcohol problem?
Have you ever been treated for any diseases?

Family

Are you married?
Do you have kids? Plan to?
Are you pregnant?
Do any of your family members have any serious medical conditions?

Race/National Origin

What race do you identify with?
What country are you from?
Where were your parents born?
What is your native language?

Religion

What church do you go to?
Do you pray?
Do you observe any religious holidays?

Permissible Questions

By contrast, here are some questions that employer generally may ask, if relevant, during job interviews:

Are you 18 years or older?
Have you ever been convicted of a crime?
Does your spouse work here?
Are you eligible to work in the United States?
What schools did you attend?
What degrees or certifications have your earned?
Do you speak (language used in job)?
How long have you lived in this area?

Subtle Differences Matter

In some cases, the precise wording of the question makes all the difference.

For example, it’s okay to verify that someone is old enough to work, but not acceptable to ask how old they are. However, if it is clear that the person is still young enough that availability to work may depend on their precise age, then asking the age directly may be okay. This would usually only apply to the youngest workers, where child labor laws apply.

Similarly, most questions about a candidate’s family situation are risky. They could fall under various protected categories, including sex, disability, genetic information, religion, etc. However, employers can ask during job interviews whether the candidate has any family members that already work at the company. Some employers even have anti-nepotism policies or other restrictions on multiple family members working together. Such rules usually do not violate any laws if applied consistently.

Job Interviews Should Focus on Ability To Do the Job

The best way to avoid asking a problematic question during a job interview is to focus solely on ability to perform the job.

Obviously, there are many different jobs, so there is no single right way to interview candidates. But all interviewers should try to ignore age, sex, race, national origin, religion, etc. That doesn’t mean they can completely overcome stereotypes, subtle biases, etc. But at least they need to keep that off the table during job interviews.

Check for Discriminatory Impact

Especially where a relatively large number of employees are hired into similar positions, hiring decisions can be reviewed statistically to see if there are any discriminatory trends. If a disproportionate number of applicants of a certain race, sex, or age are being hired into the company or particular jobs, then further analysis may be warranted. In some cases, this may show that certain interviewers are asking the wrong questions.

Smaller employers or those with less turnover can’t test for statistical significance as reliably. But since there are relatively few positions, it is easier to look at each hiring decision specifically to check whether any potential discrimination has filtered in to the job interviews.

Most often, even if an interviewer has crossed the line by asking an inappropriate question, no significant harm will occur. Counsel the interviewer on the error and instruct them how to avoid making the same mistake in the future.

If, however, an applicant or employee does make a discrimination complaint, then make sure you respond appropriately. For starters, read my article on Responding to Discrimination Complaints.

June 15, 2017

Hiring Your First Employee in New York

There are three general scenarios for a business hiring its first employee in New York State:

A New York-based business is hiring its first employee overall.
A company that already has one or more employees in another state is hiring its first employee in New York.
A foreign company is hiring its first U.S. employee, who will work in New York.

I have represented employers in all of these scenarios. Some of the issues are the same across the board. Others differ.

This post gives an overview of the considerations in each of the situations above. As always, don’t rely entirely on this blog to guide your hiring process. You should seek legal and other assistance to ensure compliance.

First Employee Overall

Some businesses start out with employees. Others are run entirely by the owner(s) until they decide to hire someone to help run the business. Either way, once the first non-owner comes on board, the business (or its owner(s) personally) becomes an employer. Having employees can be great for many reasons, but being an employer imposes many new requirements.

As an employer, you now (in most cases) have to get several kinds of mandatory insurance: workers’ compensation, unemployment, and (in New York) disability. Failure to immediately obtain these insurance coverages can result in significant liability.

Other forms of employee insurance are technically optional. This includes health insurance and life insurance. Many small employers do not provide these benefits, but many others do. Unless you have to offer these to attract the employees you’re trying to hire, these benefits should not be your first concern. Get the statutorily required insurances first. And make sure you comply with the various other notice and recordkeeping requirements that now apply to your business.

Once you are an employer, you also become subject to various notice posting requirements. For example, all employers must post information in the workplace about minimum wage and overtime requirements. Some posting requirements depend on the number of employees you have, either in the state, in the United States, or overall. All of the required notices are probably available online through the various enforcement agencies, but many employers purchase posters from private vendors. In either case, you must ensure that you have all of the necessary (and current) postings up based on your size and location(s).

First Employee in New York

Even if your company already has employees in other U.S. states, New York has its own specific requirements. If you have an employee based in New York, you probably have to satisfy most of these to avoid potential liability.

Insurance

This includes obtaining the disability insurance coverage mentioned above. Whereas most states require workers’ compensation insurance, New York is one of only five states that require this coverage. It provides partial compensation for employees unable to work based on a non-work illness/injury. (California, Hawaii, New Jersey, and Rhode Island have similar requirements.)

Wages

New York also has specific wage notice requirements. Basically, each employee in New York must receive written notice of certain information about their employer and their compensation. The employee must sign and return a copy, and the employer must retain the copy in its files. Moreover, if the employee’s primary language is one other than English, the notice may have to be provided in that language. Finally, changes in compensation or company information may require employers to give employees new notices. I have discussed New York’s wage notice requirements in more detail here.

Upon hiring an employee in New York, you must also notify the state that you have done so. More information about that requirement/process can be found here.

Policies

In the past couple of years, New York has also add written employee policy requirements for the first time. All employers must provide every employee with a copy of a written sexual harassment prevention policy and a paid family leave policy. New York employers must also provide annual sexual harassment prevention training to all employees. New hires must receive a copy of the sexual harassment training materials at the time of hire.

There are some requirements that depend more specifically on where within New York the employee works. Most of these relate to employees in New York City. For example, New York City has a paid sick leave law that requires employers to notify employees of their sick leave rights.

First Employee in the United States

There are some requirements that will apply to all employees in the United States, whether in New York or another state.

Employers must obtain and retain a completed I-9 form for each employee hired after November 6, 1986. This form confirms the individual’s eligibility to work in the United States. In addition to providing information on the form, employees must show documentation establishing their right to work. This may include drivers’ licenses, passports, social security cards, visas, etc. Allowing an employee to work without completing the form in the first 3 days of employment creates significant legal exposure under U.S. immigration laws.

Employees should also complete a W-4 form to enable the employer to make appropriate tax deductions from their compensation. Many states also impose income taxes, and may have their own employee withholding form. For example, New York’s IT-2104 form is available here. Failure to properly deduct income taxes can create problems for both the employer and the employee.

Finally, the Fair Labor Standards Act establishes both a minimum wage (currently $7.25 per hour) and overtime requirements (generally time and half pay for hours worked beyond 40 in a week). Many states, including New York, have similar laws that may impose higher wage requirements (as is currently the case in New York). Some employees, however, are exempt from minimum wage and/or overtime pay requirements. Be sure you know how these (extremely complicated) laws affect your employee(s) before bringing them on board.

Don’t Stop Here

If you are hiring your first employee in New York (or anywhere else), make sure you thoroughly consider all of the legal and financial implications. They are not all mentioned here, but hopefully this is a good place to start. Most business owners should speak to both an accountant and an employment lawyer before adding employees. This is definitely a situation where being proactive can save you considerably in the long run.

April 25, 2017

Checking in on New York Ban-the-Box Laws

“Ban-the-box” laws get their name because they literally prohibit employers from including a check box (or other item) on job applications asking whether the applicant has a prior criminal record. New York does not have a state ban-the-box law, but the three largest cities in the state have implemented these laws through local ordinances. If you are hiring in or do business with these cities, then you need to double check your employment applications to make sure your organization is in compliance.

Please note that the New York State Human Rights Law does restrict inquiries about criminal records to some degree. However, before the ban-the-box laws, it has generally been permissible to at least ask whether the applicant has ever been convicted of a felony on job applications.

Buffalo Ban-the-Box Law

The City of Buffalo passed a ban-the-box law in 2013 that took effect in 2014. This law applies to employers (public and private) located within the City of Buffalo, as well as any vendors of the City of Buffalo (regardless of location), with 15 or more employees. The law prohibits these covered employers from asking about criminal convictions on job applications and anytime before the first job interview.

Job applicants may sue employers directly for violating this law. If they prevail, applicants can recover injunctive relief, damages, and attorneys’ fees.

Anyone can also file a complaint with the Buffalo Commission on Citizens’ Rights and Community Relations. This Commission can cause the City of Buffalo’s Corporation Counsel to purse a claim against an employer in violation of the ban-the-box law. Penalties include $500 for the first violation and $1,000 for each subsequent violation.

There are some exceptions to the Buffalo ban-the-box law for situations where criminal convictions would provide a legal restriction on the ability of the applicant to perform the job.

Rochester Ban-the-Box Law

Rochester, New York also imposed a ban-the-box law in 2014. It applies to all employers (public and private) and employment agencies with 4 or more employees that employ individuals within the City of Rochester. It also applies to as to any vendors, contractors, or suppliers of services or materials to the City of Rochester (regardless of their location).

Like the Buffalo law, Rochester’s ban-the-box law allows applicants to sue employers directly for injunctive relief, damages, and attorneys’ fees. Also like the Buffalo ban-the-box law, Rochester’s law permits the City’s Corporation Counsel to bring legal action to recover civil penalties of $500 for the first violation and $1,000 for each subsequent violation.

The Rochester ban-the-box law also has some exceptions. For example, it allows inquiries where the conviction would legally prohibit someone from working in the position.

New York City Ban-the-Box Law

The New York City Fair Chance Act took effect on October 27, 2015. It prohibits employers with 4 or more employees from asking about an applicant’s pending arrest or criminal conviction record until after the employer has made a conditional offer of employment. Under this law, employers are further prohibited from even searching publicly available sources to obtain information about an applicant’s criminal history before making a conditional offer of employment.

Again, there are exceptions where a law requires a background check for a particular job or a criminal conviction would legally bar the applicant from taking the position.

Additional Considerations

The New York City Fair Chance Act has additional components designed to protect employees from discrimination based on criminal records. The New York State Human Rights Law and the federal Title VII civil rights law also provide some protections in this area.

In New York, employers who consider prior criminal records in hiring must consider all of the following factors before deciding not to hire based past criminal convictions:

The public policy of the state to encourage the employment of persons previously convicted of one or more criminal offenses.
The specific duties and responsibilities necessarily related to the employment sought or held by the person.
The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
The time which has elapsed since the occurrence of the criminal offense or offenses.
The age of the person at the time of the occurrence of the criminal offense or offenses.
The seriousness of the offense or offenses.
Any information produced by the person, or produced on his behalf, regarding his rehabilitation and good conduct.
The legitimate interest of the public agency or private employer in protecting property and the safety and welfare of specific individuals or the general public.

The U.S. Equal Employment Opportunity Commission (EEOC) has also indicated that use of criminal records in hiring, though not specifically addressed by federal statutes, can result in discrimination on the basis of other legally protected characteristics, such as race and national origin.

When Should I Ask about Criminal Records?

Employers in cities with ban-the-box laws may not initially ask about criminal convictions, unless the information is related to a job criteria imposed by law. Moreover, even where there is no ban-the-box law in place, New York employers in particular should be careful with obtaining and considering criminal record information in making employment decisions.

First, if you are going to obtain a background check from a third party service, remember that you must obtain written authorization from the applicant and satisfy other requirements of the Fair Credit Reporting Acts.

Second, if you obtain any information about prior criminal records, either from the applicant directly or through other sources, then you must carefully consider whether the conviction(s) should disqualify the candidate for employment. In New York, employers should specifically document their analysis of the eight factors listed above, as established by the New York Corrections Law. The EEOC also suggests that employers should be weighing similar factors before denying employment.

Third, given the above considerations, many employers would be well-advised not to seek any information about a job candidate’s criminal history until after making a conditional offer of employment. This will help protect against claims of criminal record discrimination in cases where the applicant would not have been hired anyway based on other criteria. It will also limit the instances where background checks need to be obtained and the multi-factored analysis described above needs to be conducted.

If you need assistance in establishing a process for considering applicant criminal histories or evaluating a particular candidate under the New York Corrections Law factors, you can contact me.