Frequently Asked Questions

FOR EMPLOYERS

Q: DOES THE LAW REQUIRE EMPLOYERS TO PROVIDE REASONS FOR NOT HIRING CANDIDATES FOR EMPLOYMENT?
In most cases, an employer does not have to give reasons for not hiring an individual. It is, however, a wise business practice to keep a record of all interviewed candidates and your reasons for not hiring them. If in the future you are accused of illegal discrimination in hiring, you can use these records to recall the reasons and defend your company against the claim.

Q: CAN EMPLOYERS ADMINISTER DRUG AND ALCOHOL TESTS TO THEIR EMPLOYEES?
Each state has laws which vary drastically concerning alcohol and drug testing in the workplace. Depending on the occupation in question, including some transportation jobs, federal law may also play a role in whether and how often employees should be tested. If you are considering drug or alcohol testing for your employees, it is crucial that you consult an experience employment lawyer who can explore your options with you, reviewing state and federal regulations.

Q: AS AN OWNER OF A SMALL BUSINESS, DO I HAVE TO VERIFY THE CITIZENSHIP OF ALL OF MY EMPLOYEES?
Yes, the Immigration Reform and Control Act requires that all U.S. employers verify the identity and eligibility of all workers, whether they are American citizens or not, by completing the Employment Eligibility Verification Form I-9. In order to complete the I-9 form, the employer must review particular documents for proof of legal work eligibility. An employer must retain these forms for all employees either for three years after the date of hire or for one year after employment is terminated, whichever is later.

Q: AFTER FIRING AN EMPLOYEE, WHAT MAY AN EMPLOYER TELL OTHER POTENTIAL EMPLOYERS CONCERNING THE REASONS FOR TERMINATION AND EMPLOYEES CHARACTER?
In most cases, the employer may tell potential employers the real reasons for the termination. As long as the information provided by the employer is true and based on a thorough investigation, they are generally protected by qualified privilege. If untruthful statements are made concerning the employee and the employer has no credible grounds for these accusations, they may be sued for defamation. To avoid suits, many employers refuse to release any information concerning past or present employees. Others require that all individuals seeking a reference sign a release giving the employer the right to discuss any good or bad feedback; these releases protect the employer from any claim which may arise from the dissemination of this information.

FOR EMPLOYEES

Q: I FEEL DISCRIMINATED AGAINST AT WORK. IS THIS ILLEGAL?
Discrimination is illegal if you belong to a protected class as outlined by federal or state law. These legally protected categories include age, disability, gender, pregnancy, race, national origin, military status and religion. Several states also define sexual orientation as a protected category. Favoritism or nepotism in the workplace may be unfair but treatment of this sort is not necessarily illegal.

Q: I AM CARING FOR AN ELDERLY PARENT AND WOULD LIKE TO TAKE TIME OFF FROM WORK TO DO SO. AM I ENTITLED TO THIS LEAVE BY LAW?
The Family and Medical Leave Act (FMLA) enables eligible employees to take a leave of absence for up to 12 weeks per year for one or more of the following reasons:

medical leave if an employee is unable to work due to a serious illness
for the birth and care of a newborn child
recent adoption of a child by the employee
to care for an immediate family member including a spouse, child or parent
In addition to this federal statute, many states have separate family leave regulations which allow individuals time away from the office to care for their loved ones.

These laws can be very complex and there are many exceptions and restrictions on the right to take medical and family leave. For example, individuals working for businesses with less than 50 employees are not eligible for unpaid leave under the FMLA. However, they may be eligible under their state's laws. If you are considering taking leave from your job, you should consult an attorney who can determine your eligibility and explain your rights under federal and state employment laws.

Q: I WAS JUST OFFERED A JOB WITH A LOCAL COMPUTER SOFTWARE COMPANY BUT BEFORE STARTING, MY FUTURE EMPLOYER ASKED THAT I SIGN A NON-COMPETE AGREEMENT. WHAT DOES THIS MEAN AND SHOULD I SIGN THE CONTRACT?
A non-compete agreement prohibits an employee from working for a competitor for a specified period of time after leaving the company. Employers often ask their employees to sign such contracts to ensure that they don’t lose trade secrets or other confidential information which may harm their competitive advantage. These agreements are usually made with a benefit being offered to the employee, such as a job offer, raise or promotion so it is typical that employees will be asked to enter into an agreement of this nature when accepting a job offer.

Before entering into a non-compete agreement, all individuals should ensure that the terms of the contract are reasonable. The length of the non-compete agreement should not last too long; although there is no set rule on these limits, most non-compete agreements last from six months to two years. Also, the agreement cannot span too wide of a geographic area as this may limit all possibility of employment should you leave the company. While most states, with the exception of California, acknowledge these agreements, the laws which govern them vary. Before signing any non-compete agreement, it is important to consult a lawyer who can evaluate the terms of the agreement.

Q: I HAVE WORKED FOR THE SAME COMPANY FOR OVER 20 YEARS. LAST MONTH, I WAS LAID OFF DUE TO DOWNSIZING. AM I ENTITLED TO A SEVERANCE PACKAGE BY LAW?
Unless your employment contract or company policy specifies the presence of a severance package in the event of discharge, you are probably not entitled to a severance package. In many instances, employers offer a severance package in exchange for your agreement to a confidentiality or noncompetition contract, or to secure release of any employment-related claims you may make. Before signing any severance agreement, it is important that you contact an employment attorney to ensure your rights are protected.

Q: CAN COMPANIES MONITOR THE INTERNET USAGE OF THEIR EMPLOYEES?
The courts have ruled that employees have few privacy rights when using their employers’ computer systems. All websites visited by workers may be tracked and non-work related sites may be blocked. All employers should have an acceptable use policy which outlines internet use in the workplace and any sites which may not be visited. If an employee knowingly violates this policy, he or she may be disciplined accordingly.

Q: WHAT IS SEXUAL HARASSMENT?
Sexual harassment is a form of sex discrimination prohibited by federal, state and city laws. The law recognizes two forms of sexual harassment - quid pro quo and hostile work environment.

Quid pro quo harassment generally entails a situation where a person in a position of power grants a job benefit to a subordinate in exchange for sexual activity, or denies the employee a benefit for refusing to engage in sexual activity.

Hostile work environment sexual harassment typically involves a supervisor or co-worker creating an abusive work atmosphere based on severe and pervasive conduct that had an adverse impact on the employee's employment. This can include repeated and unwelcome verbal, nonverbal, or physical advances of a sexual nature that interferes with the employees' ability to perform his or her job.