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We all know by now, you can’t discriminate in the workplace. What many of us don’t know, however, is what that means in the day-to-day operation of our businesses. A good place to start is the development and implementation of employment policies and practices that minimize the risk of workplace and employee litigation. Generally, an employee hired without a contract is considered an “employee at will,” meaning they can be terminated from their employment at any time for any lawful reason. Similarly, the employee can also terminate her employment freely. Federal law prohibits discrimination based on a person’s race, color, religion, sex, national origin, age, pregnancy, disability, citizenship and veteran’s status. Some states add marital status, sexual orientation and appearance. As a result of these laws, an employer must be careful in its application process regarding questions addressed to race, color, sex, age, national origin, disability, religion, citizenship and marital status. State laws can also expand the warning and could include prohibitions on discrimination based on sexual orientation, marital status, ancestry and arrest records not resulting in convictions (subject to exceptions). If the information is never intended to be used, it should not be asked. A similar warning should be heeded for those employers that ask for credit reports of its prospective employees, as the Fair Credit Reporting Act could make certain inquiries illegal. Many of these federal and various state laws require an employer to keep records of compliance with federal and state statutes. In addition, an employer with 100 or more employees is required to file an Employment Information Report. Employers must also retain the application forms and other personnel records for a period of one year from the date of the application or from when the record of hiring, firing, etc. was made. Employers must verify the identity and work eligibility status (cannot hire aliens) in the United States. A Form I9 must be completed and records of verification must be kept, else the employer can face criminal and civil penalties. Employee handbook manuals must also comply with the laws described above. It is a good idea to include a statement on the order of the employer intending to fully comply with the antidiscrimination laws and the statement should set forth procedures for responding to complaints. The inclusion of such provision and the employer’s prompt responses to complaints can enhance an employer’s protections against liability from discrimination complaints. At the same time, a handbook should include appropriate disclaimers regarding the “at will” nature of employment, the ability of the employer to amend policies or delete policies from time to time and that the handbook is not a contract, but only a source of information. Well-documented, objective evaluations can also reduce the risk of discrimination claims, just as inconsistent and poorly documented evaluations can increase the risk. When preparing a policy on electronic communications, state law must be examined. The most relevant federal law is the Electronic Communications Privacy Act, which prohibits the interception of oral, wire and electronic communication while such communications are in transit. Title II of the act (also known as the Stored Communications Act) prohibits unauthorized access to stored communications. The employer can, however, avail itself of an exemption if the employee consents to monitoring either expressly or implied from a monitoring policy in a handbook. There are other exceptions for “business use” that have not been interpreted by the courts as of yet. Adequate notification seems to be the key here, else common law liability can also result. PERMISSIBLE INTERVIEW QUESTIONS: Name MAY ASK: Ever used another name; any additional information regarding an assumed name, changed name, or nickname necessary to enable a check on your work and education record. MAY NOT ASK: Maiden name. Age MAY ASK: Are you 18 years or older? If not, what is your age? MAY NOT ASK UNTIL HIRED: Age, birthdate or ages of your children. National Origin MAY ASK: Languages applicant reads, speaks or writes, provided foreign language ability is job-related. MAY NOT ASK: Nationality, lineage, ancestry, national origin, place of birth of applicant, parents or spouse; what is your mother/native language or the language that you most often speak; or how applicant acquired foreign language ability. Color and Race MAY ASK: Nothing. MAY NOT ASK: Race or color; or questions regarding color of applicant’s skin, eyes or hair. Citizenship MAY ASK: Are you a citizen of the United States? If not a citizen of the United States, do you intend to become a citizen of the United States? If you are not a United States citizen, have you the legal right to remain permanently in the United States? Do you intend to remain permanently in the United States? MAY NOT ASK: Of which country applicant is a citizen; whether applicant is a naturalized or native-born citizen; visa type; date when applicant acquired citizenship; applicant to produce naturalization papers; or whether applicant’s parents or spouse are naturalized or native-born U.S. citizens, or the date parents or spouse acquired citizenship. Sex, Marital Status MAY ASK: Name and address of parent or guardian if applicant is a minor; may ask name of applicant’s relatives already employed by employer. MAY NOT ASK: Questions that would indicate applicant’s sex; questions that would indicate applicant’s marital status; number and/or ages of children or dependents; questions regarding pregnancy, childbearing, or birth control; or name or address of relative, spouse, or children of adult applicant. Religion MAY ASK: Nothing. MAY STATE: The employer’s regular days, hours and shifts. Physical Description, Ability MAY ASK: Height and weight, but only commensurate with the specific job requirements. MAY NOT ASK: Applicants to furnish a photograph with the application; applicants, at their option, to submit a photograph with the application; or applicant to furnish a photograph after the interview but before the job offer. Disability MAY ASK: Whether applicant can perform essential functions of the job. MAY NOT ASK: If applicant has a disability; if applicant has ever been treated for any specific diseases; or if applicant has, or has ever had, a drug or alcohol problem. Arrest Record MAY ASK: If applicant has ever been convicted of a crime (if yes, may ask for details, but must be a direct relationship between the job and the offense in order to use conviction as basis for denial of job). MAY NOT ASK: Whether applicant has ever been arrested. Membership in Organizations MAY ASK: Memberships in organizations that applicant considers relevant to ability to perform the job. MAY NOT ASK: All organizations, clubs, societies and lodges to which applicant belongs. Military Service MAY ASK: Questions regarding relevant skills applicant acquired during U.S. military service. MAY NOT ASK: Questions regarding service in a foreign military. Education MAY ASK: Applicant’s academic, vocational or professional education; or schools applicant attended. MAY NOT ASK: No relevant restrictions. Do not ask, until after applicant is hired, dates of attendance or dates of degrees obtained. Miscellaneous SHOULD NOT ASK: Questions about financial credit; questions about union membership; or questions about financial status. Judith Sullivan is a business transactional lawyer and commercial litigator with Emmet, Marvin & Martin of New York City and Morristown, N.J.

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