Q and A: Employment
FOLLOWING THESE INTERVIEW GUIDELINES, THERE ARE OTHER Miscellaneous Employment Questions & Answers POSTED BELOW, INCLUDING THE FOLLOWING ISSUES: Background checks; Federal poverty level statistics; Fair Labor Standards Act and exempt/non-exempt employee classification issues;
Interview Guidelines
These Office of General Counsel Interview Guidelines focus on what inquiries are prohibited by law. For more general interview guidelines which include good management practice and other non-legal perspectives, see the CUA Human Resource Office Interview Tips and Guidelines.
The interviewing party should be careful to ask only questions that are job related. Job applications should also be reviewed to make sure they conform to the law. The following guidelines set forth permissible and impermissible inquiries during the job interview and before the offer to hire is made.
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Age, birth certificate. Federal law prohibits discrimination on the basis of age over 40. DC imposes an additional layer of protection starting at age 18. Inquiries as to date of high school or college graduation. |
Whether candidate meets minimum or maximum age requirement that is a bona fide occupational qualification (BFOQ), such as for police officer or firefighter. |
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Alcoholism is a covered disability under the ADA. Current users of illegal drugs are not protected under the ADA. See The EEOC Enforcement Guidance on Premployment Disability Related Questions. |
See The EEOC Enforcement Guidance on Premployment Disability Related Questions. |
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ARREST RECORD |
Any inquiry relating to arrest. Any exception would have to be approved by the Director of Human Resources. For background information on sources and citations regarding arrest records in hiring, see Research Notes -- Arrest Records in Employment. See also CONVICTION. |
None. |
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It is an unfair employment practice to discriminate on the basis of citizenship. The law does not protect unauthorized aliens. It protects citizens and intending citizens, which includes aliens who are lawful permanent residents, as well as temporary residents under the amnesty program who complete a declaration of intention to become a citizen. It is not an unfair employment practice for an employer to prefer to hire a citizen or national of the U.S. over another individual who is an alien if the two individuals are equally qualified for the job. See 8 U.S.C. § 1324B. |
Whether candidate is legally eligible to work in the U.S. |
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CONVICTION RECORD
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Inquiries relating to convictions that are irrelevant to the job being applied for. EEOC position is that conviction of crime cannot be automatic bar to employment due to adverse impact on minorities. Thus, non-hire must be justified by business necessity. Must be balanced against possibility of negligent hire liability. See also ARREST RECORD. |
Inquiries about convictions that reasonably relate to performing the job in question. Consider both nature and number of convictions, facts surrounding each offense, the job-relatedness of each conviction and the length of time since conviction, plus applicant's employment history since conviction. |
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CREDIT RATING
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Inquiries relating to credit history or credit rating that do not relate to the job in question. Good credit requirements have been challenged as discriminatory because they may have an adverse impact on minorities. |
Inquiries about credit history that relate to the job in question. |
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See The EEOC Enforcement Guidance on Premployment Disability Related Questions. In general, the employer may not ask disability-related questions at the pre-offer stage. |
Questions about the applicant's ability to perform specific job functions. See The EEOC Enforcement Guidance on Premployment Disability Related Questions. |
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Disqualification of a candidate who does not have a particular degree unless employer has proven that the specific degree is the only way to measure a candidate's ability to perform the job in question. |
Inquiries regarding degrees or equivalent experience. Information regarding courses relevant to a particular job. |
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| GENETIC INFORMATION | Genetic Tests of applicant or family members; family medical history, including questions on genetic info about an unborn child; participation genetic clinical research by applicant or family member. |
None. |
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Height or weight requirements not related to job. |
Height or weight requirements necessary for the job. |
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DC law prohibits discrimination based on marital status or family responsibilities. Do not ask about childcare problems, number of children, pregnancy, support orders, etc. |
Questions about whether candidate can meet work schedule. Ask of both sexes. |
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Inquiries about membership in an organization which reflects religion, national origin, race, sex or age of the candidates. Not hiring someone because they belong to the National Organization for Women might be viewed as sex discrimination. |
Inquiries which do not elicit discriminatory information. |
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MILITARY SERVICE
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Under federal law, federal contractors may only invite disabled or Vietnam era veterans to self-identify if it is in connection with an affirmative action effort. Preferring applicants with honorable discharge rather than dishonorable discharge may be race discrimination under the adverse impact theory. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects against discrimination on the basis of military service. However, a less than honorable discharge can be the basis for denial of reemployment under USERRA. Cannot ask about military convictions, unless job related. |
Type of experience or education in military as it relates to job. Office of Federal Contract Compliance Programs (OFCCP) guidance forthcoming on whether an employer may ask about prior military service. |
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Inquiries to determine national origin, ancestry, or prior marital status. |
Whether candidate has ever worked under a different name. |
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NATIONAL ORIGIN
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Lineage, ancestry, descent, mother tongue, birthplace, citizenship. National origin of spouse or parents. Refusal to hire because of a foreign accent or lack of facility with English could be construed as national origin discrimination. Individuals must be able to communicate well enough to perform the job. |
Whether candidate is legally eligible to work in the U.S. |
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PERSONAL APPEARANCE
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DC law prohibits discrimination on the basis of personal appearance. Avoid asking questions about the person's appearance or making unnecessary comments on personal appearance. |
OK to state guidelines for on the job dress code that serves a reasonable business purpose, and to advise of CUA rules regarding standards of appearance or dress to prevent a danger to the health, welfare, or safety or employees or others. |
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POLITICAL AFFILIATION |
Questions regarding the applicant's past or present political affiliation or lack of political affiliation (DC law). |
None. |
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Complexion or color of skin or race or ethnicity or national origin; or what country are you from or where are you from? |
None. |
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Religious preference or affiliation, unless for faculty positions or unless such inquiries have been approved by the Office of Human Resources. See also Religious Discrmination. |
Whether applicant can meet work schedule with reasonable accommodation if necessary. See also Religious Discrmination. OK to ask if can support CUA mission. |
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Sex of applicant, where sex is not a bona fide occupational qualification (BFOQ). |
Sex of applicant where BFOQ, such as actor or actress. |
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| SEXUAL ORIENTATION | DC law prohibits discrimination based upon sexual orientation and asking questions about same in hiring process. | |
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UNION AFFILIATION |
The Labor Management Relations Act makes it illegal for employers to discriminate on the basis of union membership. |
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Source: EEO Interview Guidelines, 29 C.F.R. § 1602 et seq.; DC Code § 1-2501 et seq.; and DCMR, Title 4, Ch. 5, Employment Guidelines.
Other references: Legal Guide to Human Resources, by Kahn, Brown, Zepke, and Lanzarone (published by Warren Gorham and Lamont) (1996), and The Employment Coordinator, Volume 7 (1997) published by Clark Boardman Callaghan.
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Miscellaneous Employment Q&A
FLSA
Q.We have an administrative employee who, in addition to working his regular 40 hours per week shift, teaches a class. This contract indicates that the teaching assignment is a 25% appointment. I know that teaching positions are exempt, but when we mix exempt and non-exempt positions like this, do we create overtime problems?
A. Yes. The employee's status is measured by the "primary duties" test -- if the "primary duties" are non-exempt, then all hours worked are non-exempt.
"The amount of time spent in the performance of the managerial duties is a useful guide in determining whether management is the primary duty of an employee. In the ordinary case it may be taken as a good rule of thumb that primary duty means the major part, or over 50 percent, of the employee's time. Thus, an employee who spends over 50 percent of his time in management would have management as his primary duty. Time alone, however, is not the sole test, and in situations where the employee does not spend over 50 percent of his time in managerial duties, he might nevertheless have management as his primary duty if the other pertinent factors support such a conclusion." 29 CFR 541.103. See also sections 541.206 and 541.305.
See also the DOL webpage for opinion letter FLSA 2005-14 (3-17-05) on combining exempt and non-exempt positions. The focus was on primary duty.
Answer courtesy of David H. Nix, University Attorney, The University of Arizona, and reference to DOL opinion letter from Kathryn Overburg, Associate Counsel, Iowa State University
Background Checks
Q. What if anything does the Joint Commission on Accreditation of Health Care Organizations (JCAHO) require for background checks for nursing students, medical students, etc. working in a JCAHO-accredited hospital?
A. See our Q and A on the JCAHO requirement for background checks. This can be an issue at times for schools who are placing nursing students or other students in a medical field in clinical placements.Whether or not a background check is required depends upon state law, and may also depend upon the policy of the particular healthcare facility.
updated by mlo 4/1/11 to add GINA and Sexual Orientation
