Are there certain questions that an employer may not ask during a job interview?

There are several types of questions that an employer is legally prohibited from asking in a job interview. For example, an employer may not seek medical information regarding an applicant, at least not before the applicant has received a conditional job offer. Questions that seek inappropriate medical information include: "Are you disabled?" "How many sick days did you take last year?" "Have you ever made a workers' compensation claim?" or "Will you require any form of physical accommodation for this job?" An employer may, however, describe the duties of a job to an applicant and ask if the applicant can perform those duties, either with or without reasonable accommodation. In addition, if the applicant clearly has a physical disability that would seem to prevent the applicant from performing the relevant job duties, the employer may ask how the employee proposes to perform them.

In addition to medical inquiries, an employer may not ask an applicant about his or her race, national origin or religion, or about his or her family status or plans, such as whether a female applicant has children or plans to do so.

State anti-discrimination laws also often prohibit an employer from inquiring about whether an applicant is in a protected class, such as whether he or she is over age forty or a minority group member.

An employer typically may ask an applicant if he or she has ever been convicted of a crime. Asking whether an applicant has been arrested, however, may violate anti-discrimination laws, because the Equal Employment Opportunity Commission has stated that minority group members tend to be disproportionately targeted for arrest, and whether someone has been arrested is not an indication that he or she has actually committed a crime. As a result, an employer who asks applicants whether they have been arrested, and then excludes those who have, may discriminate against minority applicants.

Finally, an employer is also prohibited from asking an applicant whether he or she has participated in a strike in the past or performed union organization activities.


When may an employee be entitled to medical leave from work?

An employee who is injured or ill may not be limited to sick leave, vacation or personal leave if he or she needs time off. There are many other types of leave that an employer may be required to provide. For example, if the employee has a newborn or newly adopted child, or the employee or his or her family member has a serious health condition, the employee may be entitled to up to twelve weeks of unpaid leave per year under the Family and Medical Leave Act (FMLA). A serious health condition is an illness or injury requiring inpatient medical treatment or continuing outpatient treatment by a health care provider, or a chronic medical condition. Furthermore, many states have enacted their own family and medical leave statutes, some of which require employers to provide additional leave or paid leave.

Medical leave may also be an appropriate accommodation of a disability under the Americans with Disabilities Act. The ADA does not specify whether or what type of leave must be given to an employee who is "disabled" by an illness or injury, but courts have held that an employer may be required to provide leave beyond sick leave or personal leave if such leave would be a reasonable accommodation of a disability, as long as the leave is not unduly burdensome to an employer. A leave of one month might be unduly burdensome to a small employer who cannot hire a temporary worker to replace the disabled employee, but a leave of six months might not be unduly burdensome to a large employer who can hire a temporary replacement or reapportion duties. If the employer has allowed other employees to take long leaves for reasons that are not disability-related, such as sabbaticals for continuing education, a court may find that the employer is required to allow a disabled employee to take a similar leave.

An employee who suffers a work-related injury may be entitled to leave under the state's workers' compensation statute during the time when the employee is fully or partially disabled from performing his or her position. Such statutes often require the employer to offer the employee any available light duty position fitting the employee's physical restrictions, but if none is available, the employee is likely entitled to leave paid for by the employer's workers' compensation insurer.

Finally, an employer who includes a medical or personal leave provision in its employee handbook may be contractually bound to provide such leave to an employee who requests it.

Each of these types of leave may be taken concurrently; in other words, an employer may count an employee's workers' compensation or personal leave towards the employee's annual twelve weeks of FMLA leave. Just because the employee has exhausted his or her FMLA leave, however, does not automatically mean that he or she may be fired. The employee may then be entitled to additional leave, for example, under workers' compensation law or as an accommodation under the ADA.


How can an employee secure a "reasonable accommodation" of his or her disability by an employer?

Even when an employer knows that its employee is disabled, the employer is not automatically required to find out whether the employee requires an accommodation. Instead, the burden is on the employee to make an initial request for an accommodation. The employee need not use the term "accommodation," but need only inform the employer of the disability and that he or she needs some assistance in performing job duties. Once he or she has done so, the employer is required to engage in an "interactive process" with the employee, to determine whether an accommodation is actually needed, and if so, what accommodation might be appropriate. Both parties have a responsibility to cooperate in finding a reasonable accommodation. For example, if the employee refuses to provide any medical evidence of his or her disability or specifically notify the employer of the essential job functions that he or she is having difficulty performing, the employer cannot then be held liable for failing to provide an appropriate accommodation. Likewise, the employer cannot make a single offer of an inadequate accommodation and, if the employee refuses it, decline to search for other alternatives.

An employer may also be required to make reasonable accommodations if necessary for a job applicant to participate in the application process. An applicant who believes that he or she may need an accommodation must, like an employee, inform the employer of the need for accommodation, and then work with the employer to find an effective accommodation, if one exists. An example might be moving a typing test to a room that the applicant can reach or allowing the applicant to bring adaptive equipment to the interview, such a special keyboards. An applicant with hearing or visual impairments may be accommodated by allowing an interpreter to accompany the applicant to the interview. An employer who responds to a request for accommodation by telling the applicant that if he or she cannot participate in the interview process because he or she obviously can't perform the job may be violating the law.


How may an employer monitor employees in the workplace?

In most states, citizens have a right to some privacy in their persons and affairs, and this right extends into the workplace to protect employees from over-intrusive monitoring by employers. For example, employees have a limited right, created by federal and state wiretapping laws, to privacy in their telephone conversations and voice mail messages. An employer who wishes to monitor telephone calls or voice mail messages must warn employees that it is doing so, and establish that the monitoring is undertaken in the "ordinary course of business," such as to monitor performance or to coach employees. An employer may also monitor communications if it has reason to believe that an employee is using the telephone or voice mail to commit theft or somehow damage the company, but again, only if the employer warns the employee that it plans to monitor. An employer who monitors phone calls or voice mail messages for any reason must stop monitoring as soon as it determines that a call or message is private.

E-mail messages using the employer's network and Internet access from the employer's computer are generally not protected. Many employers monitor employee Internet use and e-mail messages. Monitoring is often done to ensure employees are not disseminating materials which would themselves violate employment laws (i.e., sexually explicit websites or racially harassing e-mails). Employees should assume their e-mail messages and Internet activities at work are not private.

Employers have monitored employees by placing video cameras around the workplace, as well. However, video surveillance of employees has been controversial. An employer who places a camera in the lunchroom or on a loading dock does not violate the law, but employers have been held liable for invasion of privacy, and sometimes for sexual harassment, after placing hidden cameras in bathrooms or in the ceilings of employees' offices.


When is harassment illegal?

Contrary to popular belief, it is not illegal for a supervisor to harass an employee simply because he or she doesn't like the employee's work or doesn't like the employee as an individual. Harassment is illegal only if it is based on some protected characteristic of the employee, such as his or her age, race, national origin, sex, religion or disability.

In addition, harassment must be "severe and pervasive" in order to violate the law. Courts have held that the government cannot make American workplaces pristine, but may ensure only that they are not "hostile and abusive" to an employee because the employee is a member of a protected class. Therefore, isolated or occasional use of racial or ethnic slurs, or sporadic dirty jokes, while offensive, will not violate the law. On the other hand, one incident of harassment, if it is severe enough, may be enough to violate the law. An example might be a sexual assault or a beating by coworkers. Likewise, harassment which is continual or which pervades the work environment is actionable. Such behavior includes constant dirty jokes or comments, repeated unwelcome passes or a workplace decorated with pornographic posters.

Finally, the harassing behavior must be offensive to the reasonable person and to the employee. Behavior which offends a highly sensitive employee, but which would not offend a reasonable person in the same situation, would not violate the law. Likewise, behavior that might offend a reasonable person, but that clearly did not offend the employee, will not create a right for damages. Some courts define a "reasonable" person as an average employee in same the protected category as the employee, for example, a reasonable female employee or a reasonable Hispanic employee; other courts consider the reaction of a generic reasonable person. In determining whether the employee was offended personally, a court or jury will consider whether the employee willingly participated in the conduct, and whether he or she used reasonably available avenues of complaint to protest the conduct.


May an employer or supervisor "play favorites" among employees?

Giving special treatment to an employee because of his or her race, age, gender, national origin or lack of a disability may be illegal under federal and state anti-discrimination laws if the special treatment results in some disadvantage to non-favored employees. Examples of illegal favoritism include giving better sales territories or special assignments to employees of a certain gender or race, providing opportunities to such employees that make it more likely they will be promoted in the future, or judging their performance by easier standards, so that their performance reviews tend to be better. Although "affirmative action" has been publicized greatly, it is only permissible when it has been ordered by a court to remedy the effects of past discrimination, or in the government or certain employers working with the federal government.

On the other hand, it is not illegal to have favorite employees, to treat some employees better than others or even to be unfair-as long as such unfairness is not based on protected criteria like race or gender. In fact, it is not illegal for a supervisor to have a consensual affair with a subordinate, and then give that subordinate special favors or a promotion because of that affair. Courts have held that while this may appear to be discrimination, in fact, the favoritism is not based on illegal consideration of any employee's protected status, but instead upon the paramour's special relationship with the supervisor. Where such relationships are widespread in the workplace, however, it creates a corporate culture in which it appears that an employee must have an affair with his or her supervisor in order to be promoted or get ahead. In such cases, courts have found that the employer created an environment pervaded with quid pro quo sexual harassment, where an employee is required to submit to sexual conduct in order to receive certain employment terms.


What is considered "working time" under the wage and hour laws?

Any work that an employer "suffers or permits" an employee to perform is considered compensable time under the wage and hour laws. This means that if an employer knows that an employee has performed work, even if the employee was not specifically instructed to do so or if the work was done outside the employee's normal hours, the employee must be paid for time spent doing this work. The time will also be counted in determining whether the employee has worked forty hours in a week, and is thus entitled to overtime compensation. An employer may discipline an employee for performing unauthorized work, but the employer must also pay the employee for that work.

Many pre- and post-work activities have been specifically addressed by the regulations and court opinions construing the wage and hour laws. For example, commuting to and from work is generally not included in working time, nor is changing clothes or washing up at the work site. Performing other preparatory duties, such as assembling tools or receiving a work assignment may be considered "hours worked," however. Short rest periods during the workday, such as fifteen-minute breaks, are hours worked. A meal period must generally be at least thirty minutes long in order to be excluded from hours worked.

Time when an employee is "on call" must be compensated if the employee must, for example, wait at the work site, even if the employee has no duties during that time. An employee who is free to go about his or her own pursuits, however, and merely leave a contact number and arrive when called need not be paid when he or she is not actually performing work. Likewise, an employee who has private sleeping quarters on the employer's premises, and who can sleep at least five hours uninterrupted, need not be paid for the time spent actually sleeping. The employee must be paid when he or she is interrupted for work, however, and if the employee's sleep is frequently interrupted, the employee must be paid for the entire time at the work site, even time spent sleeping.

Time spent on training or education is not considered "hours worked" as long as the employee's participation is completely voluntary, the employee attends outside of his or her regular working hours, and the employee performs no productive work during the class. Finally, time spent traveling for the employer is "hours worked" if the traveling is part of the employee's principal activities (for example, traveling between multiple work sites, or a day trip to an out-of-town location), although travel undertaken for an overnight trip is not compensable unless the travel is done during normal working hours, or the employee actually works as he or she is traveling.


Is an employer limited in its ability to fire an employee?

Although employment is presumed to be "at will" (meaning that the employer may fire the employee for any reason, or no reason at all), this at-will presumption is limited by a number of competing rules. An employer may not fire an employee for discriminatory reasons, such as because of his or her race or sex. The employer also may not fire the employee because the employee has engaged in a protected activity. Protected activities include complaining of harassment, discrimination or another violation of the law, filing a lawsuit against the employer claiming discrimination, filing a workers' compensation claim, or participating in an investigation of the employer by an administrative agency such as the Equal Employment Opportunity Commission or the Environmental Protection Agency. An employee who can show that he or she was fired shortly after engaging in such a protected activity may be able to sue the employer for illegal retaliation.

An employer may also be limited in its ability to fire an employee by the terms of a union contract or collective bargaining agreement, or by the terms of a contract with the individual employee. Finally, if the employer is a public entity, such as a federal, state or local government, a school district, or a government agency, the employer may be required to provide the employee with notice and an opportunity to be heard before firing the employee, and may also be required to show "just cause," such as poor performance or the violation of a work-related rule by the employee, in order to fire the employee.


May an employer fire an employee and then ask the employee to sign a waiver of claims or severance agreement?

Many employers will offer some form of severance payment to an employee who has been fired or laid off, but will make that payment contingent on the employee signing an agreement to release any potential claims he or she may have against the employer, such as for breach of contract or discrimination. Such agreements are generally legal, but are often enforceable only if the employer complies with certain requirements.

For example, the employer must make clear just what potential claims the employee may be waiving in the agreement, such as by listing the various laws (for example, Title VII or the Americans with Disabilities Act) under which the employee will no longer be able to sue. The employer must also give the employee an opportunity to review and consider the agreement and to consult an attorney if he or she wishes to do so. In fact, some laws, such as the Age Discrimination in Employment Act and the Older Workers Benefits Protection Act, specifically require that the employer advise the employee to contact an attorney, and even require the employer to offer the employee up to three weeks to consider whether he or she wants to sign the agreement. An employer who presents an employee with a severance agreement at the same meeting in which the employee is fired and demands that the employee sign it then and there or do without severance, will have a hard time enforcing the agreement against the employee later.

Likewise, some laws mandate that, in order to effectively waive claims under the law, the employee must be able to rescind or revoke his or her acceptance of the agreement for a period of time after the employee signs it, usually a week or two. This, like the mandatory "consideration period," is designed to make sure that an employee is not pressured into signing away his or her rights during the stressful period right after being fired.

Finally, some potential claims simply cannot be waived, even by an otherwise effective severance agreement. For example, claims under the Fair Labor Standards Act (the federal wage and hour law) cannot be waived by agreement between the employer and employee. Instead, the Department of Labor must be allowed to participate in any such agreement, to ensure that employees are treated fairly.


What may an employer say about why an employee left or was fired?

An employer generally may disclose, both to an employee's co-workers and to potential employers, the true reason why an employee left or was fired. In addition, an employer who inadvertently discloses the wrong reason-stating that the employee was fired for theft, for example, when the employee in fact didn't steal anything-may be protected from suit by a "qualified privilege." The qualified privilege is designed to help an employer protect other businesses and members of the public from persons whom it believes to be dishonest. This privilege is only available, however, where the employer has conducted a reasonable investigation into the statements which it makes, and where it discloses the information only to those who have a reasonable need to know. An employer who receives a report of theft or sexual harassment by an employee, conducts a thorough investigation, fires the employee and then tells other potential employers the reason for the firing is probably protected, even if the report was wrong. An employer who hears a rumor that an employee has stolen and promptly fires the employee without investigating, and then tells the newspaper that he or she was fired for stealing, could be sued for defamation.

Many employers, out of fear of suit, now decline to release any information, good or bad, about present or former employees, or require an employee seeking such information (such as a favorable reference) to sign a release of any potential claims arising out of the information.


Learn More: Employment Law

The relationship between employers and employees was originally governed by the assumption that an employer was free to offer any terms for employment, and the employee was free to either accept or reject those terms. There were few protections for employees, whether from low wages, discrimination, or a physically dangerous work environment. In the teens and 1920s, however, American workers began to organize themselves into unions. In the 1930s the federal government formally recognized, with the enactment of the National Labor Relations Act (NLRA), that individual employees often lacked the power to force employers to pay fair wages or to provide a safe workplace. The NLRA set off an avalanche of new laws governing the workplace.

At first, these laws merely supplemented the work of labor unions, such as by mandating a minimum wage and overtime payments. With the Civil Rights Movement of the 1960's, however, the federal government, followed by many state governments, began to enact laws prohibiting discrimination against women and minority group members, and barring discrimination against older employees. In 1970 the federal government enacted the Occupational Safety and Health Act, setting minimum workplace safety standards. By 1990 Congress had enacted laws prohibiting discrimination against disabled workers, and requiring employers to reasonably accommodate such workers if the accommodation was not unduly burdensome.

Today a complex network of laws governs the employer-employee relationship with many provisions requiring government reporting or record-keeping. The more employees an employer hires, the more such laws apply to it, and the more likely the employer is to inadvertently violate a law simply because it is unaware of its requirements. Here are some of the laws and terms relating to those laws:

Adverse Employment Action is any action taken by an employer that negatively affects an employee's job, for example, demotion, firing, discipline or failure to promote. In most employment discrimination cases, the employee will have to prove that the employer took some sort of adverse employment action in order to win.

Affirmative action includes efforts by employers to remedy past discrimination in the workplace or an industry by making a special effort to hire women or members of certain minority groups. Most private employers are not required to conduct affirmative action, and in fact, may violate the law by doing so. Government employers and contractors, in contrast, are often required by law to institute affirmative action programs.

Age Discrimination in Employment Act ("ADEA") is a federal law that protects older employees (those over the age of 40) from employment discrimination on the basis of age. Only employers with more than 20 employees are required to comply with ADEA. The Americans with Disabilities Act (ADA) prohibits discrimination against any disabled employee or applicant who could, with or without a reasonable accommodation of that disability, perform a job. The act also requires an employer to provide accommodation, such as modified work hours or duties, or special equipment, if such an accommodation is not "unduly burdensome" and is necessary to help the disabled employee perform his or her job.

At-will employment defines the employment relationship in many states. Under this approach, the employer and employee both may terminate the employment relationship for any reason or no reason at all, just so long as the reason is not illegal or otherwise prohibited by law, such as discrimination. Without an express or implied agreement of employment, employees are usually considered "at-will."

Bona fide occupational qualification ("BFOQ") is a job requirement, such as a specified age or sex, or the ability to lift a certain weight, that is potentially illegal because it excludes a protected class of people, but which is proven to be in good faith and legal under the circumstances. The successful use of a BFOQ defense is rare.

Consolidated Omnibus Budget Reconciliation Act ("COBRA") is a federal law that requires employers to allow employees to continue their health insurance coverage after termination, in the same insurance group, at the group rate and providing the same benefits.

Employee Retirement Income Security Act (ERISA) governs how private employers must manage employee benefit plans, such as pension funds, health insurance, and disability benefits. ERISA sets certain limitations on the way the funds in such plans may be invested, and prohibits an employer or plan administrator from wrongly refusing to provide plan benefits, such as refusing to pay disability benefits to a plan participant who is truly disabled.

Employee rights include the right to privacy, to be reinstated to work under certain circumstances if the employee serves with the military, and limits on an employer's right to conduct a background or credit check, garnish employee wages, or require an employee to take a polygraph test.

Employment contracts include written agreements signed by the employer and employee, as well as "implied" contracts created by employee handbook terms or verbal agreements. An employment contract can govern the length of employment, vacation, benefits and stock ownership, circumstances under which the employee may be fired, and whether the employee may compete with the employer after he or she has left the job.

Employment discrimination is prohibited by federal law, and by similar laws enacted by most states. Discrimination on the basis of race, national origin, gender, age, disability and religion is illegal under federal law. Some states, cities or counties also include other protected classes of individuals, barring discrimination based on sexual orientation, gender identity, and other grounds. Harassment on the basis of membership in one of these protected categories is a form of discrimination.

Equal Pay Act is a federal law that requires employers to pay the same wages to all employees who do the same work, regardless of gender.

Family Medical Leave Act ("FMLA") is a federal law that requires most employers to give up to twelve weeks unpaid leave to employees for the birth or adoption of a child, or to take care of the employee's own or family member's serious illness. The FMLA also prohibits retaliation against employees who ask about or take advantage of their FMLA rights.

Fair Labor Standards Act ("FLSA") is the federal statute that sets the minimum wage and maximum hours of work per day or week in most industries (see Wage and Hours laws below).

Federal Employers' Liability Act (FELA) provides a way for employees of railroads to sue their employers for injuries sustained on the job. The law is, in essence, the federal railroad worker counterpart to state workers' compensation statutes.

Health Information Portability and Accountability Act ("HIPAA") is a federal law that protects confidential medical information belonging to all individuals. In the employment context, HIPAA means your employer may not have access to your confidential medical information unless it is necessary for the business (i.e., your employer views the results of a drug screening test to ensure workplace safety, or you submit medical certification to your human resources department to confirm your eligibility for FMLA leave).

Hostile work environment is the basis for a type of harassment claim. Although most hostile work environment claims involve allegations of sexual harassment, a hostile work environment may be based on other protected characteristics, such as an employee's race or religion. A "hostile work environment" is created where the presence of harassing behavior (in the case of sexual harassment this could include demeaning or sexual photographs, jokes, threats or overall workplace atmosphere) is so "severe and pervasive" that it creates an intimidating and offensive work environment, and actually alters the "terms and conditions" of employment.

Municipal employment (employment by a city government) is governed by special employee protections, including the right to due process of law, such as an administrative hearing, before an employee is terminated, and additional privacy protections.

Occupational Safety and Health Act (OSHA) was enacted in 1970, and requires every employer to provide a workplace that is free of dangers that could physically harm an employee. The law covers everything from dangerous equipment to long-term exposure to pollutants or radiation.

National Labor Relations Act ("NLRA") is a federal law that regulates the employment relationship between certain employers and employees. Although the NLRA is most commonly associated with unionized employers and employees, and most of its scope is devoted to regulating that relationship, some of its coverage actually extends to all employers and employees.

Pensions, benefits and compensation are governed by an array of laws, including the Employee Retirement Income Security Act, the Fair Labor Standards Act, and laws such as COBRA, which requires an employer to continue some forms of employee insurance coverage for a period of time after the employee has been terminated. Some employment benefits are also mandated by state or federal law, such as Social Security, unemployment compensation, and workers' compensation.

Retaliation for making a claim or reporting a violation is prohibited by most of the federal and state laws relating to the workplace. In the case of Title VII and other federal antidiscrimination laws, a retaliation claim may be maintained even when an employee cannot show that he or she was discriminated against.

Sexual harassment is a form of discrimination that is barred by federal law and laws in most states. Sexual harassment includes creating a "hostile or offensive" work environment-such as by tolerating offensive language or pictures or unwelcome sexual conduct directed at an employee-and requiring an employee to submit to unwelcome sexual advances in order to remain employed or receive some job benefit.

Title VII. Part of the federal Civil Rights Act of 1964 that prohibits discrimination in employment on the basis of age, color, national origin, race, religion, or sex. Title VII also protects employees who complain about discrimination from being retaliated against by their employer.

Wage and hour laws include the Fair Labor Standards Act, which sets the federal minimum wage and requires that overtime compensation be paid to some employees, and many state laws, which may impose even higher requirements than federal law. Wage and hour laws also govern whether and when children may work.

Whistleblower laws prevent retaliation against employees for reporting or complaining about a violation of the law by the employer, or misuse of federal or state funds. Whistleblower provisions are included in a number of federal statutes and many states also bar retaliation against whistleblowers.

Worker Adjustment and Retraining Notification Act (WARN Act), requires an employer to give written notice to union representatives or to state agencies and individual employees prior to closing a plant or making a mass layoff.

Wrongful termination or discharge refers to terminating an employee in violation of a public policy of a state, such as when the employee has reported a violation of the law by the employer. Many states also recognize a claim for wrongful termination where the employer has violated its employment contract with the employee.

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READ THIS CAREFULLY: These materials are intended to provide information on the firm and of general interest, but not legal advice. Readers should not rely or act on any information herein without legal counsel. The information contained herein does not create an attorney-client relationship. As to any articles appearing in these pages, the views expressed therein are those of the authors and are not necessarily the views of the firm or its clients