September 2017

Don’t try this at work: Bad practices in hiring

Want to pay a big fat fine? Try this: After Oct. 31 in New York City, ask your next job applicant how much she makes at her current job. 

That’s a no-no under a new city law aimed at breaking the cycle of lower pay for women and minorities. Violations can be punishable by fines of $125,000 to $250,000.

Or try this: Deny someone a job because they like to hunt in their spare time. That’s banned by New York’s recreational activities discrimination law. Companies can’t discriminate against employees for doing something that’s legal on their own time. In this case, penalties are pretty low – just a couple hundred dollars.

Even though the recreational activities law has been on the books for decades, “I find that this actually comes as a surprise to many employers in New York, even pretty sophisticated employers who are very well familiar with anti-discrimination statutes,” said Jyotin Hamid, a partner with Debevoise & Plimpton in New York City.

These examples and others were mentioned during the ABA Annual Meeting, at an event titled “Hiring Practices That Land Employers in Hot Water.” Experts discussed new developments in federal, state and local laws that provide increased protections to applicants and employees, but compel employers to change how they approach recruitment and hiring.

For example, New York’s Stop Credit Discrimination in Employment Act took effect in December 2015. It bans employers from using consumer credit histories in many employment decisions.

Or consider the New York City Fair Choice Act, which took effect October 2015. It regulates when employers can ask applicants about prior criminal convictions. In many cases, that’s improper.

“Now is a really ripe time to audit your (job) applications,” said Lauren Neubauer, assistant general counsel with Terex Corporation, a manufacturing company in Westport, Conn. “There have been so many laws passed in the last couple of years.”

Panelists offered tips on how to stay out of hot water. Neubauer suggested creating a single national job application for companies that do business in several states. “From a risk standpoint, you should just go with the most progressive law that’s out there,” she said.

She also urged companies to use a standard, consistent approach to screening job candidates’ social media use. “You need a policy so you don’t have everyone Googling your candidates,” Neubauer said. “Our company subscribes to the don’t-Google-anybody policy.”

Even so, it’s sometimes hard to know when a job candidate’s social media postings cross the line, panelists said. It’s improper to not hire someone just because they like to drink in their spare time, Hamid said. Drinking is a lawful activity.

On the other hand, Neubauer said she came across a candidate with a Facebook page that included pictures with lots of guns and making “really aggressive statements, threatening statements that we felt were too risky, that it could actually put the organization at risk if we hired this person.”

Hamid said a client found one applicant who bragged online about getting his dog drunk. “I don’t know if that’s lawful or not,” he said, “but you can say that shows bad judgment.”

The New York City Commission on Human Rights focuses most of its investigations on complaints, but it is expanding its permanent investigations, said Deputy Commissioner Hollis V. Pfitsch. The agency will focus future investigations on areas that are historically under-enforced, like discrimination based on gender identity, pregnancy, immigration status and criminal record, she added.

The panel was sponsored by the ABA Section of Labor and Employment Law.

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