Legal Considerations for Ads & Questions

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Equal Employment Statement for all Companies

The Company provides equal employment opportunities to all qualified individuals without regard to race, color, religion, sex, gender identity, sexual orientation, pregnancy, age, national origin, physical or mental disability, military or veteran status, genetic information or any other protected classification. Equal employment opportunity includes, but is not limited to, hiring, training, promotion, demotion, transfer, leaves of absence, and termination. The Company takes allegations of discrimination, harassment, and retaliation seriously, and will promptly conduct an investigation when such behavior is reported.

Gender Expression Statement for all Companies

The Company is committed to providing transgender and non-binary employees with a fair and equitable work environment free of harassment in any form. Applicable federal and state law defines harassment as unwelcome behavior based on someone’s inclusion in a protected class, which includes gender identity and expression. Sometimes language or actions that were not expected to be offensive or unwelcome actually are, so employees should err on the side of being more sensitive to the feelings of their coworkers rather than less. Employees have the following rights in the workplace: 

• To express their gender openly in speech and dress 
• To transition during the course of their employment 
• To share or keep personal information about their gender private  
• To be addressed by the name and pronouns of their choosing 
• To use the restroom of their choosing 
• To have email and other company profiles updated to reflect their gender 
• To have legal documents updated following a legal name change 

Employees with questions about this policy may reach out to their manager or HR. 

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Background Checks: When do they Cross the Line?

Employers have become well-attuned to the importance of selecting job candidates that are qualified and will fit well with the organization’s culture.  Prior to extending an offer of employment to a viable candidate, best practices in conducting a background check are to use a variety of methods to assess skills, verify professional experience, and to check in with a candidate’s references.

Some employers opt to use a third-party consumer reporting services to assist with reference checking and securing consumer reports, such as criminal background checks, education verification checks, and motor vehicle reports.  This practice is compliant with the Fair Credit Reporting Act (FCRA) as long as the employer discloses to the applicant, in writing, that the report may be obtained for employment-related purposes. Such a disclosure must be made on a consent form that is separate from the employment application.  Once the applicant’s consent is obtained in writing, the employer may obtain this report. 

Should an organization opt to disqualify a candidate based on the results of a consumer report, the employer is required to follow an “adverse action procedure,” which includes sending the candidate a pre-adverse action notice, a copy of the consumer report, a final adverse action notice and a summary of rights under the FCRA. 

The EEOC has established guidance for employers with respect to the use of criminal history information.  The guidance disallows employers from basing hiring decisions on an applicant’s arrest record; rather, the conviction record is the only criteria that may be used in this regard. 

The EEOC further requires that all background checks be “job-related” and “consistent with business necessity.” For example, it is reasonable for a financial sector employer to conduct a credit history check on a job candidate. There are generally three factors that an employer may take into consideration when determining if the criminal conviction meets this burden:   

• Nature and gravity of the offense
• Time elapsed since the conviction or completion of a sentence
• Nature of the position sought

Employers must use extreme caution when basing an employment decision on an employee’s credit score or history.  While the federal law allows employers to use an applicant’s credit history in the employment application process as long as doing so is job-related and consistent with business necessity, eleven states currently have adapted limitations on the use of credit information for employment selection purposes: 

• California
• Colorado
• Connecticut
• Deleware
• Hawaii
• Illinois
• Maryland
• Nevada
• Oregon
• Vermont
• Washington

Federal law does not prohibit employers from inquiring about criminal convictions on an employment application.  However, eleven states have passed legislation disallowing employers from asking about criminal convictions on job applications; also known as “ban the box”:

• California
• Connecticut
• Hawaii
• Illinois
• Massachusetts
• Minnesota
• New Jersey
• Oregon
• Rhode Island
• Vermont
• Washington

Ultimately, an employer should assess the specific role for which it is hiring and the relevance of an individual’s criminal or credit history information in making its employment selections. This will aid in determining the necessity for conducting the background checks on specific roles that are engaged in working with the public, with vulnerable populations or with sensitive, proprietary information. Specifically, employers in the banking and financial services industry as well as those who work with young children, the elderly or individuals with disabilities are strongly urged to implement a background check in their hiring process.  Offers of employment should be contingent to the results of background checks; thus, if any disqualifying information appears on a candidate’s background check, the employer will easily be able to negate the preliminary offer of employment. The candidate will have the right to dispute the accuracy of the background check information by directly contacting the consumer agency; this right should be communicated to a candidate in order to ensure that employment background checks comply with the FCRA.

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Equal Employment Opportunity/Harassment

An assortment of Federal Acts that have been put into place  that make workplace discrimination and harassment unlawful if it is based on race, color, age (over 40), sex, sexual orientation, gender identity, pregnancy, religion, disability, national origin, ethnic background, genetic information (including that of family members), military service, or citizenship or immigration status. 

The effect of these Acts is that an employer may not discriminate based on an employee’s inclusion in one of these protected classes. Each of these various laws requires an employer to avoid and prevent discrimination in all aspects of employment. This includes, but is not limited to, hiring, work assignments, benefits, wages, bonuses, promotions, discipline, and termination. The Acts also require an affirmative effort to accommodate religion and disability in the workplace. The Acts that define equal employment, and the employee count at which they become applicable, are as follows:

• The Equal Pay Act of 1963 (Equal Pay Act, 15+ employees);
• The Civil Rights Act of 1964, as amended by The Civil Rights Act of 1991 (Title VII, 15+ employees);
• The Age Discrimination in Employment Act of 1967 (ADEA, 20+ employees);
• The Pregnancy Discrimination Act of 1978 (PDA, 15+);
• The Immigration Reform and Control Act of 1986 (IRCA, 4+);
• The Americans with Disabilities Act of 1990 (ADA, 15+); 
• The Uniformed Services Employment and Reemployment Act of 1994 (USERRA, 1+); and
• The Genetic Information Nondiscrimination Act of 2008 (GINA, 15+).

The best way to avoid discrimination is to base employment decisions only on factors that are job related. Employers should have written policies prohibiting discrimination and should provide a procedure for employees to report violations of these policies. Managers and supervisors should be trained on these policies and procedures. Complaints should be promptly and carefully investigated by the employer, and appropriate disciplinary action should be taken if the complaints are substantiated. Employers who fail to act to prevent and promptly remedy discrimination expose themselves to substantial liability.

Age
The EEOC has indicated that employers may favor older employees over younger employees. However, if a employment practice adversely affects older workers (even if unintentionally), the employer must show that the policy is based on reasonable factors other than age. 

Is it discrimination to require a high school diploma?

Weintraub Tobin Chediak Coleman Grodin Law Corporation USA January 20 2012

The Equal Employment Opportunity Commission (“EEOC”) thinks so. The EEOC recently posted a letter to its website stating that it may be unlawful for employers to require a job applicant to have obtained a high school diploma if the applicant suffers from a learning disability and has been unable to obtain one. The EEOC’s position represents a significant departure from traditional interpretation by the courts with regard to matters of unintentional discrimination resulting in a disparate impact on certain groups.

In an “informal discussion letter” the EEOC stated that requiring a high school diploma must be “job related for the position in question and consistent with business necessity.” Based on this statement, the EEOC apparently believes that employers might violate the Americans with Disabilities Act (“ADA”) if they require a high school diploma for a particular position which has the effect of disqualifying applicants who have been unable to graduate from high school due to a learning disability. The EEOC’s position appears to place employers in a very difficult position.

Employers who require their job applicants to have obtained a high school diploma generally do so in order to obtain applicants who have demonstrated the commitment and intellectual capacity to enable them to be trusted with more complex tasks in the workplace. Based on the EEOC’s decision, however, an applicant’s failure to have obtained a high school diploma may trigger a duty on the part of the prospective employer to query as to why that applicant has not obtained a high school diploma. Yet, this situation creates a catch-22 for employers. On one hand, an employer is potentially insulated from claims of discrimination asserted by mentally handicapped job applicants if the employer maintains an application process which does not consider (nor does it seek to learn) information regarding an applicant’s disabilities. Yet, on the other hand, turning a blind eye to a learning disability which precluded the applicant from obtaining a high school diploma, according to the EEOC, may violate the ADA. As a result, the EEOC’s position potentially exposes employers to allegations by disabled job applicants who claim that an adverse hiring decision was the result of discriminatory animus, either because the employer asked about disabilities, or because the employer did not select them for employment because they had not obtained a high school diploma and were unable to do so because of their disability.

This circumstance may be avoided where a high school diploma is in fact necessary for an applicant to perform the essential functions of the available job. Accordingly, where a high school diploma requirement is imposed, employers should carefully evaluate the job description and duties associated with the position to ensure that a high school education is actually required to perform the essential functions of the job. Where an employer determines that the essential functions of a job can be performed without having obtained a high school diploma, employers may wish to consider removing this condition as a basis upon which hiring decisions are made.

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Blacklisting Employment Laws by State

Employment laws on blacklisting vary by state. But the overall rule is that intentionally preventing a person from getting hired is illegal. There are at least 29 states with blacklisting statutes, according to legal information provider Nolo.

States without actual blacklisting laws sometimes have agencies that investigate the practice. North Dakota and Virginia outlaw willful and malicious job obstruction. Maine’s law is more stringent: It specifies that an employer can be found guilty whether or not it intended to harm someone.

In Connecticut, Nevada and Oregon, conspiring or conniving with others to prevent an ex-employee from getting hired is illegal. New York, Oklahoma and Washington prohibit employers from publishing an HR blacklist database.

Signs of Blacklisting

If your job hunt is unusually difficult — especially in a good economy — this could be a sign of blacklisting. If you have highly sought-after skills but can’t seem to land a job interview, that, too, could be a sign of blacklisting. Another sign that you’ve been blacklisted is when you’ve come close to getting hired and then suddenly get rejected. The possible cause is an unfavorable reference from a former boss who has tipped off a prospective employer about your “undesirability” as an employee.

Causes of Blacklisting

Blackballed employees may face unemployment for years, regardless of the cause. Employers blacklist ex-employees for incompetence, insubordination, bad behavior or simply because they don’t like them. Recruiters blacklist job seekers for skipping interviews, failing background checks, inflating their qualifications and lying on resumes.

Possible Recourses

To determine what your former employer is saying about you, consider asking a friend in business to call your former employer requesting a job reference. Or you can hire an investigator or reference-checking agency to make inquiries with your previous boss to determine whether you’re being blacklisted.

If you find that you’ve been blacklisted, you may be able to sue for defamation or discrimination depending. You can file a blacklisting complaint with the federal Equal Employment Opportunity Commission if you think discrimination is involved.

If you’d like to mend fences, contact your ex-boss, if possible, or the prospective employer and ask for honest feedback on how you could have been a more desirable employee or job candidate. If all else fails, make a new start by switching careers or industries.

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Employer-Mandated COVID-19 Vaccination

Many employers are still wondering whether they should require employees to get vaccinated. The guidance from the Equal Employment Opportunity Commission (EEOC) indicates that generally employers can require employees to get the COVID vaccine as a condition of continued employment. However, employers that do so will need to consider making exceptions for employees who can’t get vaccinated because of a disability or religious belief.

In addition, some states may provide employment protections for those who choose not to get vaccinated. For example, Montana prohibits employment discrimination on the basis of vaccination status or having an immunity passport. Texas, Kansas, Utah, Florida, North Dakota, Tennessee, Alabama, Arkansas, Iowa, and West Virginia have all passed limitations on mandatory vaccination policies, most of which require employers to allow broader exemptions than required under federal law. 

Additional issues to consider are concerted activity, safety, and confidentiality. This page does not address considerations for administering the vaccine at work.

Religion
Under Title VII of the Civil Rights Act of 1964, employees are entitled to reasonable accommodations for their sincerely held religious practices and beliefs unless the accommodation would cause an undue hardship. Below are some key points and best practice suggestions:

• Employees are allowed to ask for religious exemptions from policies that conflict with their sincerely held religious beliefs, including a mandatory vaccination policy. 
• Employers are required to grant accommodations for religious beliefs unless doing so is an undue hardship under Title VII of the Civil Rights Act of 1964.
• Undue hardship in the context of religious accommodations is defined as “more than de minimis.” 
• Be aware that court cases are all over the place on what de minimis actually means. Also keep in mind that the extra measures most employees will need to take to avoid creating a safety risk in the workplace will be very inexpensive, such as wearing a mask and keeping physical distance. 
• Employers should be aware that employees don’t have to practice a mainstream religion (one you’ve heard of or recognize) for this law to apply. If you don’t want to grant the exemption request, we recommend that you contact an attorney.
• We recommend having employees complete a religious accommodation request form.
• Before or after they fill out the religious accommodation request form, you can tell them what kinds of things they need to do if they want to keep working around other people who are unvaccinated. This is generally something along the lines of wearing a mask (maybe an N95) and keeping at least 6 feet of distance between themselves and others.
• Employees who are unwilling to take the necessary precautions to keep the workplace safe (accept the accommodations provided, such as masking and distancing) may be excluded from the workplace. 

Disability
Under the Americans with Disabilities Act (ADA), employers are required to accommodate employees with disabilities so they can perform the essential functions of their job unless it would cause an undue hardship. Employers are not required to provide an accommodation if the employee would pose a direct threat to people at work. A direct threat is defined as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 

Here are the steps to take if an employee says that they can’t get vaccinated because of their disability:

1. Determine whether allowing the employee to come to work rises to the level of direct threat, considering these four factors: (1) duration of the risk; (2) nature and severity of the potential harm; (3) likelihood that a particular harm will occur; and (4) imminence of the potential harm.
2. If no direct threat exists, grant the employee an exception to the vaccination requirement. For example, if an employee always works remotely, they wouldn’t be a direct threat.
3. If having an unvaccinated employee at work does pose a direct threat, you are required to evaluate additional reasonable accommodations to reduce the threat to an acceptable level. Possible accommodations include masking, physical distancing, and schedule modifications. An accommodation doesn’t have to be provided if it constitutes an undue hardship or the employee can’t perform the essential functions of their job. Both of these exceptions to providing an accommodation, however, are high standards to meet.
4. If having an unvaccinated employee at work poses a direct threat and no accommodation would sufficiently reduce that threat, then the employer is not required to exempt the employee from its vaccination requirement and may exclude them from the workplace. However, the employer may not necessarily terminate the employee. Instead, they should consider their policies and other laws or rights that may apply. For example, they might be entitled to leave under the federal Family and Medical Leave Act (FMLA). 

Pregnancy
Under the Pregnancy Discrimination Act, employers are required to treat employees who are affected by pregnancy, childbirth, or related medical conditions the same as other employees who are similar in their ability or inability to work. This means that if an employee can’t get vaccinated for a reason related to pregnancy, the employer would have to grant an accommodation if it does so for other employees who can’t get vaccinated for other reasons. Pregnancy-related conditions are likely to constitute disabilities under the Americans with Disabilities Act (ADA) as well. 

Safety
If an employee gets sick from a vaccine the employer requires, medical treatment or lost time may be compensable under the employer’s workers’ compensation policy; the employer should contact their workers’ compensation carrier to see if they should initiate a claim.

Separately from workers’ compensation, OSHA’s reporting and recording requirements could be triggered as well. If an employee is hospitalized or dies from getting a vaccine that the employer requires, then employers would be required to report it to OSHA. (OSHA’s reporting requirements apply to all employers, regardless of size or industry.)

In addition, employers who are subject to OSHA’s routine recordkeeping requirements (generally only those with 11 or more employees and in a high-risk industry) would need to record adverse reactions from the vaccine if they meet the recordable injury or illness standards under OSHA. However, federal OSHA has said that it won’t enforce these recordkeeping requirements for employer-mandated vaccines; however, employers should be aware that state OSHAs might. Fortunately for employers, recording an injury or illness on OSHA 300 logs doesn’t have any direct consequence, so the risk-averse approach would be to record side effects from getting the vaccine if they meet the recordable injury or illness criteria.

Protected Concerted Activity
Employees who are opposed to vaccinations for secular and non-medical reasons don’t have any inherent employment protection. However, Section 7 of the National Labor Relations Act (NLRA) could come into play if two or more employees (not including supervisors) complain about or oppose a workplace vaccination policy.

Generally, Section 7 of the NLRA entitles non-supervisory employees to engage in concerted activity for their mutual aid and protection. In the scenario of vaccinations, this means that employers cannot interfere with employees’ complaining about or opposing the vaccination policy or retaliate against them for doing so. 

Confidentiality
Any medical information an employer obtains through its vaccination program must be kept confidential under the ADA. In addition, if a mandated vaccination leads to a recordable adverse action, a record of that needs to be kept for 30 years.

Genetic Information Nondiscrimination Act (GINA)
If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof. As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.

FREQUENTLY ASKED QUESTIONS

Below are some frequently asked questions from employers regarding COVID-19 vaccination.

Can we require an employee to show proof that they have received the vaccine outside of work?
Yes. Simply requiring proof of vaccination by itself does not violate either the ADA, GINA, or the Health Insurance Portability and Accountability Act (HIPAA). Employees should be advised not to provide their full medical history or extraneous information about their medical visit when providing proof of vaccination.

Should we have a vaccine policy? Do you have a template?
If you want to require employees to get vaccinated, we recommend having a written policy. Download our Mandatory Vaccination Policy template and use as is or customize for your workplace.

Can I tell clients whether my employees are vaccinated?
According to the EEOC, information about an employee’s COVID-19 vaccination is considered confidential medical information under the ADA. Employers with a legitimate business reason to inform their clients or customers should get their employees’ written consent before doing so.

What if an employee claims a religious exemption that doesn’t seem legitimate?
We understand that employers have seen an increase in requests for religious exemptions. You can—and should—ask them to fill out a request form. And when asked to explain in writing, for the record, and sign their name to it, some employees may decide against it if they are fibbing. Not all objections to vaccination are religious in nature or sincerely held, so employers may be able to deny some requests. However, if it is your intention to deny religious exemption requests, we recommend consulting with an attorney.

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Genetic Information Nondiscrimination Act (GINA)

The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination against employees or applicants because of genetic information. Employers cannot use genetic information in making employment decisions and are subject to other restrictions regarding requesting, requiring, purchasing, and disclosing genetic information.

Definition of Genetic Information
Genetic information includes information about an employee’s genetic tests and the genetic tests of their family members, including an embryo or fetus. This includes what is commonly referred to as family medical history. Genetic information also includes requesting or receiving genetic services or participating in clinical research that involves genetic services.

Discrimination, Harassment, and Retaliation Because of Genetic Information
The law prohibits discrimination because of genetic information in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. 

GINA also prohibits harassment because of an employee’s genetic information. Harassment can include, for example, making offensive or derogatory remarks about an employee’s genetic information or about the genetic information of a relative of the employee.

Employers cannot fire, demote, harass, or otherwise retaliate against an applicant or employee because they filed a charge of discrimination, participated in a discrimination proceeding (such as an investigation or lawsuit), or otherwise opposed discrimination.

Rules Against Acquiring Genetic Information
Employers are generally prohibited from getting genetic information, except in the following circumstances:

• Inadvertent acquisitions of genetic information, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
• Genetic information may be obtained as part of health or genetic services, such as wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
• Family medical history may be obtained as part of the certification process for leave under family leave laws or the employer’s policy, where an employee is asking for leave to care for a family member with a serious health condition.
• Genetic information may be obtained through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources specifically to find genetic information or accessing sources they are likely to acquire genetic information from (such as genetic testing websites and online discussion groups).
• Genetic information may be obtained through a program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, if certain requirements are met, where the program is voluntary.
• Employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of identification of human remains can obtain genetic information of employees to analyze DNA markers for quality control to detect sample contamination.

Confidentiality of Genetic Information
GINA prohibits employers from disclosing genetic information about applicants, employees, or their family members. Employers must also keep genetic information confidential and in a separate medical file (which can be the same file the employer uses for medical information under the Americans with Disabilities Act). Employers, however, must disclose genetic information to government officials investigating compliance with GINA or pursuant to a court order.

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Illegal Interview Questions Employers Sometimes Ask

Several topics are off the table in job interviews and are indeed illegal questions. The questions are illegal to protect candidates from discrimination. Illegal job interview questions include any questions that are related to a candidate’s:

• Age
• Race, Ethnicity, or Color
• Gender or Sex
• Country of Natural Origin or Birth Place or Citizenship or Language
• Religion
• Disability
• Marital or Family Status
• Salary History (in California; Oregon in January 2019; Delaware; Massachusetts in July 2018; New York City; Puerto Rico; and Philadelphia)

13 Illegal Job Interview Questions

• What arrangements are you able to make for childcare/eldercare while you work?
• Do you plan to have children?
• When did you graduate from high school?
• Are you a US citizen?
• Are you married?
• What does your spouse do for a living?
• Where did you live while you were growing up?
• Will you need to take personal time for particular religious holidays?
• Are you comfortable working for a female boss?
• There is a large disparity between your age and that of the position’s coworkers. Is this a problem for you?
• How long do you plan to work until you retire?
• Have you experienced any serious illnesses in the past year?
• What is your salary history? (Illegal in parts of the U.S. – see above for cities/states)

The Do’s and Don’ts of Social Media Policy

Chances are most of your employees are on social media, and some of them may be using their private accounts to say things about their employment. Frustrated employees might even be complaining about their working conditions – or about you. 

While it may seem prudent to ban employees from saying anything negative about your organization online – or perhaps even discussing work at all – the National Labor Relations Board, which interprets the National Labor Relations Act, has ruled that this kind of restriction is illegal. That said, employers can still encourage employees to think before they speak (or type), and remind them that behavior akin to unlawful harassment of their co-workers may still lead to discipline.

Here are a few Do’s and Don’ts to keep in mind when creating one:
DO… Maintain control over company social media accounts. As the employer, you own them and have a right to access them. You should always have the current credentials to access company social media, even if you assign an employee or outside party to oversee the accounts.

DO… Respect the privacy of employees. Even publicly-viewable social media accounts are part of the personal lives of your employees. Monitoring the personal conversations of your employees indicates you don’t trust them. Employees who believe their employer doesn’t trust them will be less engaged and committed.

DO… Encourage employees to be respectful and to avoid statements that could be interpreted as threatening, harassing, or defaming. You can tell them not to present their opinions as those of the company and to refrain from sharing confidential company information on social media. Put employees on notice that you may request to see their social media activity if it’s relevant to an investigation of misconduct. State laws generally say you may request access to an employee’s personal social media only if you’re conducting an investigation into that employee’s alleged misconduct and you have a reasonable belief that the employee’s personal social media activity is relevant to the investigation.

And now for the Don’ts:
DON’T… Examine the social media accounts of applicants or employees. If you were to learn information about a protected class or protected activity, and then made an adverse decision regarding the employee or applicant, you could open yourself up to claims of retaliation or discrimination. Generally, it’s best that employers and supervisors not be online “friends” or “followers” of their employees.

DON’T… Restrict concerted activity. According to the National Labor Relations Board (NLRB), employer social media policies should not be so sweeping that they prohibit (or would seem to discourage) the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

DON’T… Ignore the laws. While state laws differ, they share some general themes. First, the laws prohibit employers from requiring or requesting that employees or applicants disclose their login credentials (usernames or passwords). Second, the laws say you can’t require or request that an employee or applicant access their personal social media in your presence or add you to their contacts or friends list. If an account is private, you shouldn’t try to gain access to it. Third, the law prohibits retaliation on your part. For example, if you were to discipline an employee for refusing to show you what’s on their social media timeline, or not hire an applicant who refused to do the same, you’d be in violation of the law.