July 16, 2014 – In the comic pages or on TV, bosses seem to run their companies as little kingdoms, routinely imposing or changing work conditions, and no doubt hiring new employees on a whim. You know the real world is no longer like that (if it ever was), but some employers might not. And every employer will need guidance from time to time. State Bar of Wisconsin PINNACLE’s Wisconsin Employment Law will help you guide all your clients through the 21st century employment environment.
What follows are a few questions your business clients may ask you. You may think you know the answers, and you probably do, but you may be surprised (and be glad you have the book at hand).
I’m a nonunion employer and I’d like to keep it that way. Can I refuse to hire an applicant solely because I suspect that he intends to push for unionization of my workforce?
Not for that reason alone. Unions are allowed to try to recruit from inside the workforce – a practice called “salting.” If the applicant is otherwise qualified and can demonstrate a “genuine” interest in getting the job, the NLRB says you can’t deny him the job solely because you want to discourage unionization. But you don’t have to hire him if you have a legitimate reason to hire another candidate.
Seems to me that it makes sense to just refuse to hire anyone with an arrest or conviction record. Any problems with that?
There could be, according to the Equal Employment Opportunity Commission (EEOC). The EEOC says you run a serious risk of being found to have discriminated against protected groups if you use arrest or conviction records as an absolute bar to employment opportunities. Instead, you should use “best practices” in considering arrest and conviction records. That means you should evaluate the nature and seriousness of the offense, the time that has passed since the offense, and the nature of the job.
I have a potential employee who seems like she could do the work just fine, but she has some sort of personality disorder that makes me uncomfortable. Can I require her to take some sort of personality test before deciding whether to hire her?
If she’s capable of doing the job, and her condition is irrelevant to her performance, and if her condition is a recognized disability under the Americans with Disabilities Act, you can’t require such a test as a condition of hire. That would be deemed discrimination. Any test would have to be job-related and tied to a business necessity.
I want to hire my nephew to work in the warehouse, but I’m concerned about his temper. He’s been fired from somewhere else for fighting, and he’s been arrested for disorderly conduct more than once. I’m hoping some good hard work will straighten him out, and he knows I’ll be watching him. Anything special I should be concerned about?
You’re taking a big risk. As an employer, you could be liable for negligently exposing your employees or customers to the risk that your nephew could assault or otherwise harm them, if you know or should know that he might deliberately hurt someone. In short, you could be held liable for your decision to hire him, separate from the harm he does.
I just got a reference request about an employee who quit my company just before I could fire him. I know I want any reference letter I get to be complete and honest, and I feel like I should tell this new employer all about this guy. But I’m afraid I’ll get in trouble if I do. What do you think?
You won’t get in trouble, if the information you provide is true and you’re not saying it maliciously or in a discriminatory matter. The law presumes that you are making statements in good faith, and he would have to overcome that presumption. Keep any letter brief, factual, and to the point.
Can I ask a female candidate about her “family obligations?”
Yes, but only if there’s good, job-related reason. Our courts have made it clear that the question in and of itself does not constitute sexual discrimination, even if directed only at women. But at least one federal district court has held that the question can be the basis for a discrimination claim – if the woman is denied the job based on her answer, while the record shows that family obligations were not considered important for male applicants. In other words, make sure that the issue is of concern to you, make sure you ask it of all applicants, male and female, and make sure it really matters.
Wisconsin Employment Lawis your time-tested source for answers to questions like these, and many, many, more
Wisconsin Employment Law has long been the go-to source for practical and timely information on this complex and critical practice area, addressing both Wisconsin and federal employment law. As with all PINNACLE products, Wisconsin Employment Law is objective, neutral, and balanced, exploring both employer and employee perspectives, addressing employee claims as well as employer defenses.
The print edition of Wisconsin Employment Law is available to members for $219, plus tax and shipping. Print purchasers who subscribe to the Bar’s automatic supplementation service will receive future updates at a discount off the regular update price. Annual subscriptions to Books UnBound start at $149 per title and $769 for the full Books UnBound library (single-user prices; call for firm pricing). Current full-library subscribers to Books UnBound automatically receive these updates. For more information, contact the State Bar at (800) 728-7788 or (608) 257-3838.