A The 25 off-limits interview questions Can I make …

1 June 15, 2011 Vol. 25, No. 24. Alexander Hamilton Institute Q &A The 25 off- limits interview questions Can I make an employee cover up her tattoos? J ob interviews present a minefield of legal problems for supervisors. One wrong question could spark a discrimina . To avoid the appearance of discrimi . nation during interviews, do not ask the following 25 questions : Q. An employee with tattoos on her upper tion lawsuit by a rejected candidate. 1. Are you married? Divorced? arms usually wears long sleeves, but not That's why managers should never 2. If you're single, are you living with in summer. Can I require her to cover the wing it during interviews. Instead, it's anyone? tattoos? We don't have a dress code. best to create a list of interview questions . 3. How old are you?

2 , Pennsylvania Every question you ask should some 4. Do you have children? If so, how A. Employers are free to adopt a policy how relate to this central theme: How many and how old are they? ad dressing tattoos, piercings and other are you qualified to perform the job you 5. Do you own or rent your home? personal appearance issues as long as it doesn't unlawfully discriminate against are applying for? Managers usually land 6. What church do you attend? one protected group (age, race, religion, sex, in trouble when they ask for information 7. Do you have any debts? etc.) more than another. So it's important that's irrelevant to a candidate's ability to 8. Do you belong to any social or po . to be consistent when applying such a do the job. litical groups? rule. It is legal to impose greater restric- Federal and state laws prohibit dis 9.

3 How much and what kinds of insur . tions on employees who have direct con- crimination on the basis of an applicant's ance do you have? tact with customers. race, color, national origin, religion, sex, The following questions relating Also realize that while much body art age or disability. Some state laws also to a person's health could result in is simply for decoration, it could have prohibit discrimination based on factors a lawsuit under the Americans with religious implications. If so, federal anti- such as marital status or sexual orienta Disabilities Act (ADA) or state disabil- discrimination law may require you to tion. Asking questions relating to any of ity law: offer a reasonable accommodation to this religious practice. these topics is legally dangerous. Continued on page 4.

4 Must we pay an employee who works through lunch? Q. We have an hourly employee who How to react to employees' requests for leave voluntarily works through his unpaid lunch break a few times each week. Do we have to pay for that time? , Ohio W hen an employee asks for time off for medical reasons, how do you respond? You may be annoyed that the absence review and was fired soon after. She sued. The verdict: The court sided with the employee, saying the supervisor's nega . A. The Fair Labor Standards Act (FLSA) will cause scheduling and workload prob tive reaction was evidence that the FMLA. is clear: It requires employers to pay an lems. But it's vital not to show any nega leave was the real reason for the firing. employee for all the time he or she is tive reaction to requests for medical leave.

5 (Villalon v. Del Mar College). suffered or permitted to work. The That's because such leaves of absence Department of Labor says that means, may be covered under the federal Family Time spent doing work not requested by and Medical Leave Act (FMLA). And if How does the FMLA work? the employer, but still allowed, is gener- the employee is later disciplined or ter The Family and Medical Leave Act ally hours worked, since the employer minated, she may try to prove that her (FMLA) says eligible employees those knows or has reason to believe that the FMLA leave was the real reason for the with at least a year of service can take employees are continuing to work It action and the supervisor's angry reac up to 12 weeks per year of unpaid, job- is the duty of management to exercise tion was proof.

6 Protected time off work for the birth (or Continued on page 4 adoption) of a child or to care for them- Consider this recent court case: When selves or a sick child, spouse or parent an employee asked for a leave of absence who has a serious health condition.. In this issue for medical reasons, her boss said in an The FMLA applies to organizations with Lessons From the annoyed manner, What am I going to do 50 or more employees. Online resource: 12 manager mistakes that spark while you are gone? When she returned 7 questions to ask before from her leave, she received a negative (800) 543-2055 Business Management Daily Lessons From the Courts Legal Briefs Terminations: Follow the 2-and-1 rule Praising off-the-clock work? Then plan to pay for it U nfortunately, lawsuits often come down to one person's word against another's.

7 For that reason, it's always best to have n ational sales manager for a manufactur . ing firm in Texas, was called into the company president's office and given a A group of Los Angeles public safety at least two representatives from manage letter stating he was being terminated for employees sued for unpaid overtime. ment anytime a manager is handing out poor performance. The hourly workers claimed they hadn't discipline or conducting a termination. Woolsey sued for age discrimination, been paid for time spent before and That way, the fired employee can't make alleging that during his termination meet . after their shifts checking e-mail and exaggerated claims about what happened ing, the president said Woolsey was no completing reports. The county claimed during the meeting.

8 Spring chicken. The president denied it had no idea about the work but Also, in terminations, managers making the comment. Later, in court fil . performance reviews regularly praised should establish one solid reason for the ings, the company offered additional rea . employees for their extra (unpaid) work. discharge and stick with it. Giving sons for the termination. That was enough for the court to side contradictory explanations later makes The court sent the case to trial, saying with the employees. (Vallerand, et al., v. County of Los Angeles) it far easier for a court to decide that the the president's comment, if true, was evi . The lesson: Managers should be real reason for the firing was some sort of dence of age discrimination. So were the careful about praising hourly employees discrimination.

9 Shifting reasons. (Woolsey v. Klingspor for their off-the-clock efforts. Workers Case in point: James Woolsey, a Abrasives). can use those comments in an overtime- pay lawsuit as proof that the company not only knew of the extra hours, but also condoned them. No gut decisions': interview job candidates Lesson from the I'm too sexy for my shirt' case S upervisors may think they know all the candidates for promotion so well that they can save time by making the choice just eight years of experience and no col . lege degree. No interviews were conducted. Rudolpho Lamas complained to a com- without conducting interviews. Reason: The supervisor said she already pany boss that a female co-worker was Case in point: Defense Department knew enough about the candidates. making unwanted sexual advances.

10 But employee Barry Bartlett was 58 years old Bartlett sued for age discrimination. the boss told Lamas he should be happy when he was passed over for a pro motion The court sent the case to trial, noting that and walk around singing I'm too sexy in favor of a 39-year-old woman. the supervisor didn't seem to know the for my shirt. After he was fired, Lamas Bartlett had a bachelor's degree, ad experience or education level of any of filed a sexual harassment case. A court vanced coursework and 34 years of expe the candidates. sent the case to trial, saying men are rience at his agency. Still, the supervisor That cast a huge shadow over the selec . equally entitled to Title VII protection selected the female candidate who had tion process. (Bartlett v. Gates). from a sexually hostile work environment.