Understanding Negative Hiring Practices and How to Avoid Them

Interviewing applicants for jobs typically involves questions and sometimes testing. As an employer, you should be aware that some questions have a negative impact on certain protected classes. Protected classes are groups of people based on race, color, religion, sex, pregnancy, sexual orientation, gender identity, national origin, disability status or age (age 40 and older).

If your method of screening out applicants eliminates a protected class, you should consider using a different screening method. Find another effective alternative that has less of a negative impact and use it instead. Also, your questions should be strictly related to determining whether the individual can perform the job.

discrim at job interview

According to the EEOC , here are examples of negative questions or testing:

  • Requirements for a certain height or weight range often negatively affect female applicants.
  • Making applicants pass agility tests can negatively affect older applicants.
  • Requirements that employees live in certain geographic regions can negatively affect applicants of a particular race.
  • Broadly excluding applicants with criminal records can negatively affect applicants of a certain race or origin.

How Can You Substitute Testing/Questions with Better Alternatives?

One way to deal with a height or weight requirement is to determine instead whether the person is able to perform the specific job duties safely and efficiently.

If you have agility tests, ensure they are related to a legitimate business purpose, such as being quick enough or strong enough to perform the job being applied for.

Instead of requiring that people live in a geographic area, find out whether they are familiar with the area. Ask whether they could respond to service requests within that area. Whatever the job related reason is for wanting them to know the area is what is important, not actual residency.

Stephen Hans & Associates is an employment and labor law firm that assists small and medium sized business owners. This has been our legal focus for more than 20 years.



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Is It Time to Update Your Severance Agreements?

Keeping your handbooks, employment agreements, severance agreements and other documents current with laws and legal trends can seem like a lot of work. However, when you get caught on the wrong side of a legal dispute, hindsight says it was well worth the time.

The National Law Review recently published an article entitled “SEC Targets Severance Agreements that Impede Whistleblowers”. The article lists a number of companies the SEC went after because their severance agreements that employees signed had clauses that warned the employee would waive severance or other benefits if they engaged in the following types of activities against the company:

  • Filing a complaint with the SEC
  • Filing a complaint with a government agency
  • Disclosing confidential information, except when disclosure is required by law, in response to a subpoena or with the company’s permission
  • Relaying communication that disparaged, denigrated, maligned or impugned the company or its officers, directors or other associates
  • Voluntarily communicating or contacting a government agency

severance agreements


SEC Settled with a Number of Companies

Between 2015 and 2016 and continuing into 2017, the SEC has settled with a number of companies. While names were withheld, examples of settlements included:

$130,000 owed in penalties and an agreement put in place to amend confidentiality statements stating that employees were allowed to report possible violations to the SEC and other government agencies

  • $180,000 penalty
  • $1.4 million penalty
  • $340,000 owed in penalties and the implementation of a mandatory yearly training program to inform employees about their whistleblower rights

Employee termination agreement or contract


EEOC Targets Companies

The EEOC has also targeted companies with severance agreement clauses that interfere with the EEOC’s ability to investigate possible discrimination violations.

Get Legal Help with Revising Documentation

Private companies along with public companies are at risk for lawsuits if their legal documents contain clauses that impede employees in regards to reporting information to government agencies.

Stephen Hans & Associates assists small and medium sized business owners with regulatory and employment related concerns.

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Record-Keeping Actions Required When Hiring Employees

At Hans & Associates, we work with clients to prevent legal or regulatory disputes and also represent our business clients when disputes arise.

We live in an administratively complex and legal world where many requirements are expected of business owners. Take the simple example of hiring a new employee. There are administrative actions that employers legally must take within certain deadlines.

Score.org outlines some administrative steps for being in compliance with state and federal administrative laws.

I-9 Records

Based on federal law, you must verify your employee’s eligibility to work in the U.S. You have three days from the hiring date to complete the I-9 form. On 11/14/16 the USCIS released a new I-9 version and as of 1/22/17, employers must use this version. You keep the I-9 in your records for three years after the employees hiring date or for one year after the employee’s termination.

Record-Keeping Actions Required When Hiring Employees


W-4 Form

You must keep employment tax records for your employees and this includes W-4 forms, which include allowances an employee is claiming. This information is vital for determining the amount of money to withhold from paychecks. The IRS requires employers to keep W-4’s and other employee tax records for a minimum of four years after paying taxes.

Withholding from Wages for Taxes

You must add the employee to your payroll and withhold from wages the proper amount to remit to taxing authorities. Taxes withheld include income tax, Medicare, Social Security and state income tax.

Report the Hiring to the NY Department of Taxation and Finance

You must report the employee’s first name, middle initial and last name, employee’s address, employee’s Social Security number, and hire date along with your company name, address, employee identification number and whether you provide independent health insurance benefits for the employee and the qualification date. You have 20 calendar days from hiring the employee to report this information. The state department uses this information for following up on employees who owe child support and have payments taken out of their paychecks.

Posting Federal and State Labor Notices

Even starting with your first employee, your business must display federal and state notices such as minimum wages and anti-discrimination laws. In addition, you must display them where employees can see them. Postertracker.com provides a service to help you stay up-to-date with posters.

Stephen Hans & Associates is an employment and labor law firm. Our firm has assisted small and medium sized businesses with employment law issues for more than 20 years.



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Examples of Harassment in the Workplace

If you own a business and are working to prevent harassment, it is crucial to understand what harassment is. Do you know what behavior the legal system considers as harassment? Many employers do not have a firm grasp of what constitutes harassment, other than a common sense notion of it.

The EEOC’s proposed guide against unlawful harassment (downloadable at the EEOC website)  discusses two main harassment categories.

Severity of Harassment Incidents

The severity of one incident can determine a hostile work environment. The following types of incidents are considered severe:

  • Sexual assault
  • Touching of an intimate body part
  • Physical violence or the threat of physical violence
  • The Use of symbols of violence or hatred toward individuals sharing the same protected characteristic (swastika, image of a Klansman’s hood or a noose)
  • Use of the “n-word” by a superior
  • Use of animal imagery for comparing a worker to a monkey, ape or other animal
  • Threats to deny job benefits based on the person’s rejection of sexual advances

When the above conduct occurs in the presence of coworkers or clients, the court may consider it even more degrading and therefore more severe.

Pervasiveness of Harassment Incidents

Pervasiveness refers to the frequency of conduct along with the cumulative effect of certain behavior. Even though there is no set number that establishes the pervasiveness, the intensity or amount of time passing between incidents is a factor. The closer together the incidents are, the more pervasive the harassment is.

The fact that the behavior is unwelcome, and the worker has expressed this fact is also relevant in determining whether harassment occurred. Sparse instances spread out over a number of years may not be considered harassment.

An example of pervasiveness would be making sexual overtures, such as sending revealing photographs, notes asking for dates, communications about how attractive the person is and descriptions of fantasies about the person.

If you have questions about whether harassment is occurring in your company, seek a legal opinion and find out how to deal with it.

At Stephen Hans & Associates, our employment litigation firm assists small and medium sized business owners in employment related matters.

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Employers, Protect Yourselves | 2017 Harassment Claims

The Equal Employment Opportunity Commission (EEOC) has spent considerable researching and analyzing harassment claims related to federal anti-discrimination laws. Such laws protect individuals based on race, color, religion, sex, national origin, disability, age or genetic information harassment.


According to the Chair of the EEOC, Jenny R. Yang :

“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces.”

The Commission has opened up to the public for input on proposed enforcement guidance.

Harassment Claims on the Rise in the Workplace

Between 2012 and 2015, harassment claims from the private sector increased from slightly more than 25% to 30% to 31% percent of the federal charges filed for 2013, 2014 and 2015 respectively. Dealing effectively with harassment has been an EEOC priority since 2013.

Guidance Based on the Harassment Prevention Report

Employers can benefit from reading about the EEOC’s positions on harassment law. The report gives explanatory examples and recommends practices that companies can implement.

Employer discrimination

Information Contained in the Report

The report describes the scope of hostile work environment claims. It gives examples so you understand the extent to which harassment can occur outside of the regular place of work and how it can impact the workplace. It covers subjectively and objectively hostile work environments.

It can help you determine whether the harassment is severe or pervasive. A single severe incident of harassment can result in a hostile work environment. Pervasive, which means ongoing actions, can also result in a hostile work environment, and the report provides examples of pervasive harassment.

Numerous best practices actions exist that employers can take. One is conducting anonymous employee surveys on a regular basis to detect whether harassment is occurring. Repeated communication to employees about how the company provides easy access to a complaint system is another example. You can implement practices that protect both yourselves as employers and your employees.

You can download the EEOC Proposed EG on Unlawful Harassment for Public Input and provide your feedback to the EEOC.

Stephen Hans & Associates is an employment litigation firm. We have assisted small and medium sized businesses with employment law issues for more than 20 years.

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Restaurant Menu Labeling Compliance Date Changed

Since a menu-labeling law was passed in 2010, restaurants with 20 or more locations operating under the same name have faced new requirements. The requirements are that they provide calorie information for standard menu items and upon request of guests, provide additional nutritional information about menu items.

Changes to Compliance Date

According to an article published by the National Restaurant Association (NRA) , the date this requirement would go into effect has changed several times over the last few years:

  • Initially it was to begin on Dec 1, 2015
  • Then Congress directed the FDA to deal the day to May 5, 2016
  • Recently, the day has been delayed to May 5, 2017

The FDA announced the latest extension that pushed the date into 2017 on December 2, 2016. This extension will give restaurant owners the extra time they need to make the right choices about menu item information.

The purpose of the nationwide federal menu labeling standard is to give customers access to uniform information at restaurants. The rule also provides certainty for restaurant owners over the patchwork of state and local laws about menus.

What Restaurants and Food Retail Establishments Are Subject to the Menu Labeling Rule?

Restaurants and similar food retail establishments that are part of a chain of 20 or more locations that do business under the same name and offer substantially the same menu items must comply with the rule. The rule says that establishments serving “restaurant-type food” are subject to the rule.

Examples of “restaurant-type food include:

  • Food for immediate consumption at a sit-down or quick service restaurant
  • Food purchased at a drive-through
  • Take-out and delivery pizza
  • Hot pizza at a grocery and convenience store that is read to eat
  • Pizza slices from a movie theater
  • Hot buffet food
  • Hot soup at a soup bar
  • Food from a salad bar
  • Foods ordered from a menu or menu board at a grocery store for individual consumption
  • Self-service foods and foods on display for individual consumption (deli counter wraps, sandwiches and panini)
  • Cookies from a mail cookie counter
  • Bagels, donuts and rolls offered for individual sale

(FDA Guidance for Industry: Nutrition Labeling of Standard Menu Items… )

At Stephen Hans & Associates, our employment litigation firm assists restaurant owners of small and medium sized businesses in employment related matters.

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Holiday Parties: Employers’ Legal Responsibility

As the holidays roll around, it is important for employers to understand their responsibility when throwing a holiday party that involves alcoholic beverages.

A case brought against the Marriott Hotel in 2009 spelled out the risks potentially involved.

Marriott Sued in Drunk Driving Accident Case

As reported in HR Morning, employees and management at the Marriott Del Mar Hotel threw a holiday party to thank its employees. Each employee received two tickets for alcoholic beverages. The hotel managers planned to serve only wine and beer. The hotel’s bartender Michael Landri didn’t work the day of the party and arrived at the party after drinking a beer and shot of Jack Daniel’s whiskey at home. He also brought a flask of Jack Daniel’s to the party and refilled it using the bar’s liquor stock.

Landri either was driven home or drove himself home after the party ended and arrived safely. The problem arose when he decided to drive home a co-worker who had become inebriated at the party. While taking the employee home, Landri rear- ended another vehicle. He was driving 100 mph and the impact killed the driver. Landri’s BAC tested at .16, twice the legal limit.

Case Details

The family of the driver who was killed sued the Marriott (Purton v. Marriott International Inc.) based on a claim that Landri’s intoxication resulted from the holiday party. Counsel for the Marriott argued that Landry had arrived home safely and wasn’t acting within the scope of his job.

The court ruled that the party and drinking had benefited the Marriott as a promotion to improve employer-employee relations and the hotel was therefore liable.

Stephen Hans & Associates is an employment litigation firm. We have assisted small and medium sized businesses with employment law issues for more than 20 years.

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