Earlier this year, I wrote a blog about a new workplace benefit – student loan debt relief.  Now, it seems employers are again thinking outside the box with respect to employee benefits.  The latest workplace benefits employers are offering include onsite meditation, yoga and other programs that help workers de-stress.  Other unique benefits are cooking classes, standing desks, bringing a pet to work, and free snacks or meals.  All these benefits are in addition to the more traditional benefits of medical and dental insurance, paid vacation, sick time, and retirement accounts.

A recent news article discussed a research study conducted by Glassdoor.com which found 57% of people said benefits and perks were among their top considerations when accepting a job.  Also, four out of five employees indicated they would like additional benefits over a pay raise.

These new and unique job perks are structured to help employees with work/life balance.  A challenge for employers is finding benefits their employees are interested in.  Older workers or working parents are going to be interested in different benefits than  younger millennials.  As long as employers keep all employees in mind when deciding what benefits to offer, I think they will definitely increase employee job satisfaction.

Norfolk Southern Corp. is a federal contractor that has reached an agreement with the U.S. Department of Labor to pay almost $500,000 to 2,086 African-American job applicants in order to resolve claims of race-based hiring discrimination.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) conducted a routine compliance evaluation, and found over a two-year period a division of Norfolk Southern engaged in hiring practices which discriminated against African-American applicants.  These actions were in direct violation of Executive Order 11246 which prohibits federal contactors from discriminating in employment practices.

Norfolk Southern has not admitted liability.  But the Company has agreed to discontinue use of its current selection procedures, as well as to review and modify its employment practices for recruiting, screening, selecting, interviewing, rejecting and hiring candidates.  These changes resolve all the violations found by the OFCCP.

I recently blogged about the importance of not discriminating against job applicants.  This case shows how expensive it can be for employers who fail to review their hiring processes for potential discrimination.    Before making your next hires, review your policies and procedures to make sure you are not discriminating against job applicants.  

job-applicationIf you are an employer you are aware you may not discriminate against your employees, but it is important to know the law also applies to job applicants.  Most employers include an equal employment opportunity (EEO) statement in their employee handbooks or policy manuals.  If you don’t, then you definitely need to update those documents.  The EEO statement will typically read, “This Company will comply with all applicable laws governing equal employment opportunity. This policy extends to all applicants and employees and to all aspects of the employment relationship including, but not limited to, recruiting, hiring, promotion, transfer, and compensation…”

Last year, the Minnesota Court of Appeals remanded a case back to district court for determination of damages, after holding the employer discriminated against a job applicant on the basis of her pregnancy.

In LaPoint v. Family Orthodontics, P.A., A15-0396 (Minn. Ct. App. 2015), Dr. Ross with Family Orthodontics, a small business with only 9 employees, rescinded a job offer made to Ms. LaPoint after learning she was pregnant and wanted to take 12 weeks of maternity leave.  Family Orthodontics had a policy allowing for six weeks of maternity leave.  When notifying Ms. LaPoint the job offer was rescinded, Dr. Ross identified two concerns: 1) why Ms. LaPoint didn’t tell her about the pregnancy when she was interviewed and 2) that a three-month maternity leave would be too disruptive to the business.

The Minnesota Human Rights Act (MHRA) prohibits employers from discriminating against a person with respect to hiring on the basis of sex.  Sex includes “pregnancy, childbirth, and disabilities related to pregnancy or childbirth.”  See Minn. Stat. §363A.03. Employers are also prohibited from asking for information from a job applicant that pertains to sex.

In LaPoint, the court determined there was substantial direct “evidence in the record that Family Orthodontics discriminated against LaPoint on the basis of her pregnancy in a purposeful, intentional, and overt manner.”  The court stated the first reason Dr. Ross gave for rescinding the job offer, was substantially based upon the pregnancy and illegitimate because it punished Ms. LaPoint for failing to disclose a fact which Family Orthodontics could not lawfully inquire about.  The court held the second reason, anticipated maternity leave, was also related to the pregnancy.  Additionally, there was evidence presented that Family Orthodontics reposted the ad for the orthodontic assistant shortly after learning about Ms. LaPoint’s pregnancy.

Employers be cautious when interviewing job applicants and do not ask questions that can lead to you learning information about a protected class status.  As my law partner has blogged about in the past, hiring decisions are some of the most important ones an employer makes.  The last thing you want to do is open your business up to litigation because of a job applicant you didn’t hire.

Line of people taking notesEarlier this year the Court of Appeals overturned the district court’s dismissal of a case regarding the negligent retention of an employee.  In Hartfiel v. Allison, unpublished Court File # A15-1149 (Minn. Ct. App. 2016) Mr. Hartfiel, the plaintiff, drove truck for T.J. Potter Trucking Inc. as an independent owner-operator.  Mr. Allison drove truck for Potter Trucking as an employee.  In June 2010, Mr. Allison attacked Mr. Hartfiel at the workplace.  Mr. Hartfiel sued Potter Trucking for negligent hiring, negligent retention and negligent supervision of Mr. Allison.  The district court dismissed all of Mr. Hartfiel’s claims, and Mr. Hartfiel appealed.

The Court of Appeals reviewed the negligent hiring and negligent retention claims stating, “Negligent hiring is the failure of an employer to use reasonable care in hiring individuals who, through the employment, may pose a threat of injury to members of the public…. An employer will not be held liable for failure to discover information about the employee’s incompetence that could not have been discovered by reasonable investigation…”

Plaintiff Hartfiel claimed because Potter Trucking did not do a background check on Allison when it hired him, it did not conduct a reasonable investigation.  Mr. Allison had previously been arrested for assault on two occasions.  Generally, there is no legal duty that employers investigate an applicant’s criminal record.  Potter Trucking does check applicants’ driving records but does not conduct criminal background checks.  The Court of Appeals stated, “In determining whether an employer conducted a reasonable investigation, …is directly related to the severity of risk third parties are subjected to by an incompetent employee.”  The Court of Appeals found there was no evidence to suggest that Potter Trucking knew or should have known of Allison’s violent propensities when it hired him as a truck driver.  Therefore, the district court did not err when it granted summary judgment to Potter Trucking on the negligent hiring claim.

The argument of negligent retention has very different considerations.  The Court indicated, “The difference between negligent hiring and negligent retention focuses on when the employer was on notice that an employee posed a threat and failed to take steps to insure the safety of third parties.”

Plaintiff Hartfiel testified he had heard about Mr. Allison “working over” a subcontractor while off-duty out at a bar.  Mr. Allison admitted to smacking the subcontractor because he thought the subcontractor was going to hit him.  The incident was not reported to Potter Trucking because it was off-duty and off-site, but the owner of Potter Trucking acknowledged the altercation had been brought to his attention via the gossip mill.  He did not address the issue because it was not work related and he stated, “boys are boys”. The Court of Appeals held there were genuine issues of material fact regarding Mr. Hartfiel’s negligent retention claim, and overturned the district court’s granting of summary judgment.

My law partner has previously blogged about the importance of the hiring process.  Many employers many not realize that they can be sued for negligent hiring and/or negligent retention.  Take an opportunity to make sure you have a good hiring process in place.  Also, don’t ignore issues between employees just because they don’t occur at work.

Last week I spoke at the “Professional E.D.G.E” morning business event co-sponsored by the White Bear Area Chamber of Commerce and the Vadnais Heights Economic Development Corporation.  I spoke on the importance of good hiring practices and in particular, hiring employees for character.

I have blogged about the importance of hiring for character in the past and routinely talk to clients about the importance of good hiring practices.  In fact, I see good hiring as a gift that will keep paying off in rewards to any workplace for years and years.   A poor hiring decision can be costly in terms of potential litigation, morale, low-productivity, and may even lead to retention problems with the exit of many great employees.

If you are still relying on the old standard interview questions “What are your strengths?” and “What are your weaknesses?” STOP immediately!    The Internet is full of websites and blogs that provide answers to these and other standard questions.  You are not gaining any insights about the candidates and most likely are just getting rehashed Google search responses for the most commonly asked interview questions.  Instead, go deeper.  Check out my blog for character questions that will be helpful in vetting candidates.

As always, interview questions should be focused on the skill set necessary for the position being filled.  Employers should keep the focus on the job, and not attempt a fishing expedition into protected waters. 

A new year means it is time to revisit hiring strategies, and implement new plans to attract and find the best candidates.  The job market is extremely competitive and good candidates are hard to find.  Reworking hiring plans now can help avoid costly hiring mistakes.  We have been advising our clients to rethink their hiring focus, and consider hiring for character. 

It used to be typical interview questions included, “Tell me about your strengths and weaknesses.”  A candidate’s response to this type of question was scripted and simply regurgitated information contained in a resume.  No new insights about the candidate were gained and valuable interview time was wasted.  Better interview questions include:

  1. Tell me about a time you handled a situation in the wrong way?  How did you handle the situation?  What did you learn from that experience?
  2. Define what you believe “doing a great job” means?
  3. What is the last commitment you failed to keep?  Why?
  4. Tell me about a situation where you went above and beyond what was expected of you?
  5. What can you do for our department (company) that someone else cannot do?
  6. What kind of things do you not like to do?

Cierra Ford at BackgroundChecks.org helped develop an infograph that is a good resource for employers considering hiring new employees this year.  My favorite suggestion for employers is to start looking for good candidates before you need them.  That is definitely not a traditional way for employers to think about hiring new employees.  In practice, this means actively recruiting college and vocational graduates, and mining a variety of other places where potential employees can be found.  It may mean starting a paid internship program to gain access to new up-coming talent. 

Creativity is the key to find future candidates who will develop into great employees. The point to remember is that if your business is not creatively approaching its hiring strategy in 2015, your competitor is, and you stand to miss out on some great candidates. 

 

"Ban the box" was signed into law in Minnesota back in January 2014. This is the law that prohibits public and private sector employers from asking about arrests and criminal convictions on a job application. I previously blogged about “ban the box,” and urged employers to update their application forms.

Now six months later, you may be looking to do some summer hiring and may have forgotten to update your job applications. Here is a resource to help you review your job applications and it even includes training for employers on hiring practices.

It is too easy to dust off the hiring file and do things the same way you did for your last hire. Please make sure you have updated your job application forms and freshened things up a bit to avoid penalties.

A new year is quickly approaching and so is the implementation of a new law restricting circumstances when Minnesota public and private employers can request information about a job applicant’s arrests and criminal convictions. This is happening across the country in a number of other states and is being called “ban the box,” in reference to the box on many job application forms which ask about an applicant’s criminal record. 

Under the new law scheduled to take effect January 1, 2014, Minnesota public and private employers may not inquire, consider, or require disclosure of an applicant’s criminal history until after the applicant has been selected for a job interview, or if no interview is being conducted, then before a conditional offer of employment has been made.

This is not new to Minnesota public employers, as a similar restriction went into effect for them in 2009. Note: The new law does not impact employers who have some other statutory duty to conduct criminal background checks which are job-related such as police, fire, school bus drivers, etc…

This is however new to private employers, who may become subject to review and penalties from the Minnesota Department of Human Rights. Penalties are set out in the new statute and increase as time passes. Public employers who are the subject of complaints or grievances in violation of the statute will be reviewed under Chapter 14, the Administrative Procedures Act.

Prior to January 1, 2014, all Minnesota employers should review their job applications and hiring procedures, to insure they are ready to comply with the new law. This may require removal of questions on job applications concerning criminal history, unless of course the position is covered by a statutory exception. It may be permissible to consider criminal history later in the process, if an applicant has been selected for an interview or a conditional offer has been made to the applicant. 

The school year is coming to an end and a new batch of graduates will be hitting the job market, looking for their first real job. The struggling economy has little to offer, and employers are not confident enough to add personnel until the economy improves a bit. The natural temptation for both employers and job seekers is to consider summer internships. Free work, resume boost, whatever the motivation, it all sounds good. Even the internet is full of stories about famous people who worked as interns on the way to becoming who they are today. Oprah Winfrey, Lady Gaga, Brooke Shields, and Kanye West, all reportedly worked as an intern in their career. It sounds even better.

Last weekend Steven Greenhouse of the New York Times wrote, “As of Friday’s job reports showed, job growth is weak, and the unemployment rate for 20-24 year olds was 13.2 percent in April.” He mentions lawsuits filed by three different unpaid interns who worked for “Harpers Bazaar, on the movie set of “Black Swan,” and for Diane von Furstenberg’s fashion house, as well as the negative work experience of other interns who worked in Hollywood for Scott Rudin, and for a booking agent in New York. While some internships may provide valuable experience and boost a resume, others are little more than the exploitation of the vulnerable unemployed, required to perform menial tasks for free.

The Department of Labor takes a dim view of employers who seek to supplement their paid workforce, by using unpaid summer internships in this way. A DOL fact sheet offers guidance to “for-profit” private employers,” to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act, for the services they provide. Internships will most often be viewed as an employee-employer relationship, unless each element of the test described below is met. 
 

Internship Test:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. 

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.

I blogged about summer internships around this same time last year. Unfortunately, the slow economy is perpetuating the practice, as employers and college graduates continue to look to alternate ways to solve their economic problems. Minnesota Lawyer called me for a quote on an internship article they are publishing, after recognizing the same seasonal employment issue.  Employers should think again before concluding an unpaid internship is a great solution.
 

Conducting criminal background checks is becoming routine in the hiring process of new employees. Many employers see them as one way to vette potential candidates, and reduce the pool of job applicants. Yet, automatically excluding a job applicant because of a criminal history may subject an employer to a disparate treatment claim brought by the EEOC.

Last week, the EEOC issued a helpful guide for employers called Enforcement Guidance of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Employers should be aware there are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”).

  • First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin. 
  •  Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

(A short question and answer guide was also issued, by the EEOC which summarizes the major points.)

Minnesota employers should also be aware of state statutes which relate to criminal history checks. Minn. Stat. 181.981 applies to private sector employers. It is designed to encourage the hiring of ex-offenders by limiting the parties ability in negligent hiring and retention cases, from introducing evidence relating to an employee’s past criminal history, when the job duties of the position did not expose co-workers or the public to any heightened risk of harm.

In the case of public employers, Minn. Stat. 364.021 prohibits most public employers from making inquiry about the criminal history of a job candidate, until the applicant has been selected for an interview. This of course does not apply where the public employer has a statutory duty to conduct a criminal history background on a job candidate such as corrections or law enforcement.

Hiring decisions have the potential for being scrutinized. As such, they should be carefully planned and if a criminal history is utilized, it should be reviewed to insure compliance with the most recent EEOC guidance.