Hiring

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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.

Q: I hire seasonal employees for the summer.  Are there any particular considerations I should be aware of?

A: Seasonal employees can provide much needed support during the summer months.  However, there are certain issues to consider.  First, it is important to clarify upfront that employees are only expected to work for the summer, while at the same time reminding employees that the relationship is at-will and can be ended at any time by either party.

Q.  I understand that the Philadelphia Wage Ordinance was supposed to go into effect soon. Do I need to take action to comply now?

A.  As we blogged previously, the new Philadelphia Ordinance would make it unlawful for employers in Philadelphia to inquire about a prospective employee’s wage history or require disclosure of wage history as a condition of employment. Employers would only be permitted to rely on such information if the prospective employee knowingly and willingly disclosed his or her wage history to the employer.

Q.  My company is thinking about hiring a summer intern. Is there a requirement that we pay the intern, or can we hire him or her on a voluntary basis?

A.  Now that the weather is getting warmer, many companies are looking at their workforce needs during the summer months. Summer internships provide an excellent way for interns to get much needed “real world” job experience, while helping employers by adding another set of hands to complete projects that have not been completed during the rest of the year.

But must the employer pay for this assistance?

Q.  My company has employees in New York City.  We often ask applicants about their salary history as a starting point for negotiating and setting a new salary.  Are we still permitted to do this?

A.  Effective October 2017, it will be unlawful for employers to ask job applicants in New York City about their salary history.  Salary history includes “current or prior wage, benefits, or other compensation.”  The ban includes inquiries to an applicant’s current or former employer and searches of publicly available information for salary history.

Q.  My company is based in Philadelphia.  We often set salaries for new employees based on the applicant’s wage history.  Are we still permitted to do this?

A.  Effective May 23, 2017, a new Philadelphia Ordinance makes it unlawful for employers in Philadelphia to inquire about a prospective employee’s wage history or require disclosure of wage history as a condition of employment.  The law was passed to encourage employers to base salary offers on the job responsibilities of the position sought, rather than on the applicant’s prior wages.  Employers will no longer be able to rely on the wage history of a prospective employee when determining the wages of that individual, unless the individual knowingly and willingly disclosed his or her wage history to the employer.

Q:  What does it mean to discriminate against someone based on their national origin?

A:  Title VII prohibits employers from acting in a way that would have the purpose or effect or discriminating against an employee because of his or her national origin.

But what does the term “discrimination based on national origin” really mean?

Q: What does it mean to “ban-the-box,” and how does it affect our hiring process?

 A: Ban-the-box legislation is quickly spreading throughout state and local jurisdictions.  Even if your jurisdiction has not adopted such legislation yet, it is likely that it will do so in the not-so-distant future. Therefore, it is vital to understand both the rationale behind the legislation and how it will affect your organization’s hiring processes.

Q.  I read somewhere that it is ok sometimes to choose employees of a particular sex, national origin or religion. Isn’t that discrimination?

A.  Federal, state and many local laws prohibit employers from basing employment decisions on any protected category, including an employee’s sex, national origin or religion. While there are certain exceptions, such as where a particular protected category is a bona fide occupational qualification, the exceptions are extremely narrow, as one Broadway show found out the hard way.