Cathie's Corner Blog

(Published November 3, 2009)

In the current job market, I'm sure we're all receiving far more applications than we can use, whether or not we're even hiring.  I had a conversation with someone the other day about pre-screening these applications that got me thinking about the process.

The manager I was talking to wanted to ask a series of questions before he would even allow applicants to complete the application.  At first glance, this seemed fairly reasonable.  But after I looked at the questions he wanted to use, I had to stop and think.

The first question had to do with the applicant's willingness to clean (it's a small company where everyone has to do a little bit of everything, including cleaning).  The second and third questions had to do with shaving and haircuts.  The final one had to do with the applicant's willingness to work on holidays occasionally.

While the first question seemed fairly straightforward, I wondered what would happen if someone who was physically disabled applied.  Would they be eliminated from contention because of their inability to clean the bathrooms?  The second two had obvious difficulties; there are both medical reasons (for some races) and religious reasons why a man might not shave, and religious reasons why a man or a woman might not cut his or her hair.  The last question also raises religious implications, though not as strongly since there is no religion that would require all holidays off.

My concern was with the way these questions could be used.  It appeared that they would be used as a method of elimination — if the answers were not "yes" right down the line, the individual would not even be allowed to apply.  This has the potential to put the employer on the wrong end of a discrimination lawsuit.

On the other hand, I do recognize that employers are being overwhelmed with applications, and they need to do something to trim the overload.

So what I suggested to him was that he provide the applicants with a way to explain any "no" answers, and that he make it clear that a "no" answer to one or more of the questions would not necessarily eliminate them as a candidate.  Therefore, someone who answered, "I cannot help with the cleaning because I am in a wheelchair," or, "I cannot shave my beard because I am a Hasidic Jew," would still be able to apply, whereas someone who said, "I am not willing to help with the cleaning because that's not the job you're hiring me to do," or, "I am not willing to cut my hair because it's none of your business how I wear my hair," could be eliminated.

Is it still risky?  Certainly, it is.  I don't think the questions are a wise idea at all.  A candidate who gives honest answers that include one or more "no's" and who is eliminated later in the process for other reasons, might well believe that they were eliminated for a discriminatory reason and the employer could still get sued.  It's just not a wise set of questions to be asking.  I would imagine that most smart applicants would give the employer the answers they want to hear and then discuss any "no" answers if it appears that a job offer is forthcoming.  At least I hope they would.  It's what I'd do.

But at the same time, the percentage of people who would be eliminated by these questions and by a reason that is prohibited by law is probably pretty small.  Truth be told, there is no such thing as a risk-free method of elimination.

Just be certain, when you do any pre-screening, to keep the questions business-focused.  There will be plenty of time to address holiday policies, dress codes, or non-essential job functions as you go through the process.

Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.

Did you know that AHI offers discrimination training? Click here to learn more or call Fran Goggin at 800-879-2441. 

(Published October 12, 2009)

One of the things I find myself repeating endlessly is, "Check your state laws." We all know that state law can vary from federal law, but every once in a while I run into a state law that is somewhat unique even from other states. It was suggested to me recently that I make a list of a few of these laws. Hopefully if you are in the state in question, I'm not telling you anything you don't already know, but who knows? It might be useful if you open up a branch, or hire a salesperson, or have a new client who needs on-site work, in a state other than your own.

I came across this one only recently. We all know, or should know, that federal law gives employers the right to dock exempt employees' salaries only in very limited circumstances. One of those circumstances is when they have used all their available sick time (yes, I'm simplifying). But in New Hampshire, an employer cannot dock an exempt employee for illness at all, unless the Family and Medical Leave Act (FMLA) applies. The state law covers most of the other situations that federal law covers, except for illness. (NH 275:43-b)

One of the most unusual laws I've ever run across is a law in South Dakota that allows employers to hold an employee's final paycheck until the employee has returned all of the employer's property. This is not to say that the employer can take their time about it; if the property is not returned until after the pay would normally be due, it must be paid as quickly as possible after the property comes in. But for the state to give an employer permission to hold the check? That's rare. (SD 60-11-10)

There are quite a few states that require an employer to allow their employees time off to vote. In most of those states, it's a standard block of time for all employees; between two and three hours in most cases. However, in Nevada, the amount of time the employee is allowed to take depends on how far they live from the polling place. I don't know how many employers will actually want to take the time to double check the distance between each employee's home and the location of the nearest polling place, but they might want to at least keep an eye on how much time people are taking! (NV Rev. Stat. Ann. 293.463)

States also vary in terms of categories protected under their anti-discrimination laws. The following is only a sampling; do not take this list as complete:

Political affiliation — CA, DC, NY

Personal appearance — DC

Height and weight — MI

Use of a service animal — NV, NJ, NY, PA, VA, WA

Observance of Sabbath — NY

Familial status — PA

There are others, and other states, but these were the ones that stood out for me.

State laws are changing rapidly, and it's our responsibility to know what they are!

Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.