Q: My Company’s standard employment settlement agreement includes a no-rehire provision. Can I continue to include that provision for California employees?

A: If the agreement settles an employment dispute with an “aggrieved person,” you may no longer include a no re-hire provision in the agreement for California employees. Assembly Bill No. 749 (“AB 749”), which amends the California Code of Civil Procedure, became effective January 1, 2020 and provides that if an unlawful no-rehire provision is included in a settlement agreement, the provision is void as a matter of law. An “aggrieved person” is defined as a person who has filed a claim against the employer in court, before an administrative agency, in an alternative dispute forum, or through the employer’s internal complaint process.
Continue Reading California Now Prohibits No-Rehire Provisions in Certain Employee Settlement Agreements

Q.  Is my company allowed to inquire about an applicant’s salary history when considering him or her for employment?

A.   The growing trend to eliminate inquiries into a job applicant’s salary history continues. In July, New York and New Jersey became the latest states to enact legislation that will restrict employers from obtaining and utilizing

Q: Can my company refuse to hire or terminate an individual because the individual is a medical marijuana user?

A: Not necessarily.  While we have not seen any laws to date explicitly requiring employers to accommodate employees’ use of marijuana for medicinal purposes while at work, in some states at least, employers may not terminate employees for their use of medical marijuana outside of the workplace, even if it means that the employee tests positive in a drug screen.
Continue Reading Employers May Have to Accommodate Medical Marijuana Users Under Some State Laws

Q: Does using social media advertisements targeted to younger potential applicants raise age discrimination concerns?

A: The Age Discrimination in Employment Act (“ADEA”) makes it illegal to discriminate against workers over the age of 40 in employment advertising, recruiting, hiring, and other employment opportunities.  The publication provision of the ADEA generally makes it unlawful to “print or publish” job notices or advertisements “indicating any preference, limitation, specification or discrimination, based on age.”  Age preferences for younger employees are only appropriate when age is demonstrated as a bona fide occupational qualification that is reasonably necessary for the normal operation of the business.
Continue Reading Social Media Job Postings and Age Discrimination

Q.  Our company wants to establish an internship program and host student interns to work alongside our employees. Do we need to pay the interns?

A.  Possibly. Over the past few years, courts and the Department of Labor (“DOL”) have carefully examined the relationship between businesses and unpaid student interns to determine whether students working at a company are more properly classified as unpaid interns or employees protected by the Fair Labor Standards Act (“FLSA”).  Under the FLSA, if an individual is deemed a non-exempt employee, that employee must be paid at least a minimum of $7.25 per hour and one and a half times their regular rate of pay for all hours worked in excess of 40 in a workweek.  The minimum wage is higher in many states, including New York and New Jersey.
Continue Reading U.S. Department of Labor Endorses More Flexible Unpaid Intern Test

Q.  My company wants to target on-line recruitment ads for certain jobs to specific age groups. Is that legal?

A.  In most circumstances, the answer is no. Unless an employee’s age is a bona fide occupational qualification (i.e., hiring an applicant under a certain age is reasonably related to an essential operation of the business), a policy targeting recruits under an age limit likely will be considered age discrimination.
Continue Reading Job Ads Distributed to Younger Recruits May Be Discriminatory

Q: A former employee has invited some of her former co-workers and clients to connect on LinkedIn. Is this a violation of her non-solicitation agreement with our company?

A: It depends. In general, a generic invitation to connect will not be viewed as a violation of a non-solicitation agreement.  However, if an invitation is accompanied by a personalized message or other targeted communication, it likely will be viewed as a violation.
Continue Reading LinkedIn Activity May Violate Non-Solicitation Agreements

Q: What do I need to know about the recent additions to New York City’s law about the use of criminal history in employment decisions?

A: While the New York City Fair Chance Act (“FCA”) has been in effect since October 2015, the New York City Commission on Human Rights (“Commission”) recently enacted final rules, which clarify many aspects of the law.  The final rules went into effect on August 5, 2017.

The key provision of the FCA prohibits employers from inquiring about an applicant’s criminal history until after a conditional offer of employment has been made. The final rules explain the meaning of a conditional offer, and clarify the steps an employer must take before revoking a conditional offer or taking an adverse employment action.
Continue Reading Important Additions to NYC’s Fair Chance Act Limit Employers’ Ability to Perform Background Checks

Q:  My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?

A.  The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers.  By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.
Continue Reading Zero Tolerance Drug Testing Policies in the Age of Medical Marijuana

Q.  My Company would like to have all applicants for employment submit to a pre-employment physical examination to ensure that they are fit for the position. Is this allowable?

A.  Employers may require an applicant to submit to a pre-employment physical examination, but only after a conditional offer of employment has been made, and even then only under the following conditions:

  • All other candidates in the job category must also be required to submit to the physical;
  • The candidate’s medical history is kept separate from other employment-related records and is treated confidentially; and
  • The results are not used to discriminate against the applicant under the Americans with Disabilities Act (“ADA”) or other discrimination laws.


Continue Reading Physical Exams as a Condition of Employment: Are They Permissible?