LABOR & EMPLOYMENT ACADEMY

Christopher E. Hoyme Jackson Lewis LLP 10050 Regency Circle Suite 400 Omaha, NE 68114 (402) 391-1991 hoymec@jacksonlewis.com LABOR & EMPLOYMENT ACADEMY www.jacksonlewis.com © 2009 Jackson Lewis LLP

HIRING Define the job and determine the qualifications

The Importance of a Good Job Description • It provides: • Notice to employees regarding the requirements of the position • Defense to disability discrimination claims • A tool to support decision to hire or promote an applicant or employee • Support for an employer’s classification under the FLSA

Generating Applicants • Avoid using language that implies anything other than “at-will” employment (For example: temporary, permanent, career path, long term growth, job security) • Consider the following when advertising: • Check union contracts • Target advertising venues • Ensure awareness of any Affirmative Action obligations • Choose wording to avoid discrimination claims • Avoid gender specific job titles

Generating Applicants • Affirmative Action obligations • Recruiting via the internet or other “electronic technologies”

Assessing the Candidates • A legally sound and effective application • Screening of applicants • Consumer investigative reports and credit checks • Criminal history • Off-duty conduct laws • Pre-employment screenings • Drug & Alcohol testing • Reasonable accommodation issues • Reference checking

INTERVIEWING AND FAIR HIRING PRACTICES INTERVIEWING AND FAIR HIRING PRACTICES

Interviewing • The interview is the critical communications link in the selection process. • Interview questions should be designed to determine a candidate’s abilities to perform the essential job functions defined for the job.

Interviewing • Anyone interviewing job candidates must be aware of areas in which seemingly innocent actions or questions can subject the organization to discrimination charges. • Guiding principle: Can the employer demonstrate a job-related necessity for asking the question?

Models of Discrimination • Disparate Treatment: • Treating similarly-situated employees differently under like circumstances.

Models of Discrimination • Disparate Impact: • A facially neutral employment policy or practice that has a disproportionate adverse impact or effect on members of a protected class in comparison to the majority class.

Models of Discrimination • Reasonable Accommodation: • Religion: Refusing to reasonably accommodate the sincerely-held religious beliefs of applicants and employees, absent a showing of undue hardship. • Disability: Refusing to reasonably accommodate “otherwise qualified” disabled individuals, absent a showing of undue hardship.

Interviewing DO’s • Ask questions that are job related • Only ask those questions on which you intend to base your hiring decision • Ask the applicant about prior employment • Ask whether the applicant has any educational background pertinent to the position.

Interviewing DO’s • Ask whether the applicant has any training or experience in the military that is related and useful to the position. • Ask whether the applicant is at least 18 years of age. • If there is reason to believe an applicant is under the age of 18, ask for proof of age, such as a birth certificate. • Inform the applicant that he or she must, if hired, establish identity and authorization to work in the United States.

Interviewing DO’s • Inform all applicants that the organization is an equal opportunity employer. • Make sure the applicant is aware of the policy that factors such as race, age, and sex are NOT considered in employment decisions. • Require the applicant to fill out the application completely and sign and date it.

Interviewing DO’s • Require the applicant to specify the position for which he or she is applying. • Evaluate the capability of an applicant by using specific, written job criteria. • Be sure to refer to that criteria when specifying the reason for rejecting an applicant.

Interviewing DO’s • Maintain an applicant flow chart that provides a record of applicants. • Include the applicants’ sex, race, source from which he or she applied, position sought and status of application. • Periodically analyze the data to determine whether adverse impact exists.

Interviewing DO’s • Document objective reasons for not hiring an applicant. • The interviewer should not make any notation or comment on the application that indicates for example the age, sex, race, color, or physical disability. • Reduce the number or persons involved in the decision-making • Where possible, limit the number to the person who conducts the preliminary interview and the ultimate decision-maker.

Interviewing DO’s • Train interviewers to follow these requirements. • Train interviewers to consider the intent behind the question being asked and how the information will be used. • Be sure the training is regularly updated to include new laws and legal interpretations.

Interviewing DON’Ts DO NOT: ► Ask questions about race or color. ► Ask females different questions than males. ► Ask whether the applicant has been arrested. ► Ask the applicant about the type of military discharge.

Interviewing DON’Ts DO NOT: ►Ask questions about the applicant’s national origin, either directly or indirectly. • Also do not ask these questions about the applicant’s family. ► Ask for a “maiden name”. ► Ask about marital status, regardless of gender.

Interviewing DON’Ts DO NOT: ► Ask about pregnancy and family plans; name of spouse, spouse’s occupation; names or ages of children. ► Request or require the applicant to submit a photograph with the application. ► Intimidate, harass, anger, tease, or make the applicant defensive.

Interviewing DON’Ts DO NOT: ►Ask about an applicant’s weight or height. ► Ask about political affiliations or union membership or sympathies. ► Ask if the applicant can read, write, or speak a foreign language, unless clearly necessary to perform the job.

Interviewing and Hiring Under the ADA • Employers may not make any pre-employment inquiries regarding disability, but may ask about an individual’s ability to perform specific job functions.

ADA Interviewing DO’s • Attach a job description to the application form with information about specific job functions, or simply describe the functions to the applicant during the interview. • The applicant can be asked: • Are you able to perform these job duties with or without an accommodation. • If the applicant indicates that he/she can perform the job duties with an accommodation, he or she may be asked: • How would you perform the tasks, and with what accommodations?

ADA Interviewing DO’s • Describe or demonstrate the specific functions and job duties and ask whether an applicant can perform these duties with or without a reasonable accommodation. • Ask questions regarding ability to perform ALL job functions or duties, not merely those “essential” to the job.

ADA Interviewing DO’s • Provide information on regular work hours, leave policies, and any special attendance needs of the job, and ask if the applicant can meet those requirements. • Obtain information about the applicant’s previous work attendance on the application form, during the interview, or in reference checks. • But, questions should not refer to illness or disability.

ADA Interviewing DON’Ts DO NOT: ►Ask whether the applicant ever suffered from or was treated for conditions or diseases. ► Ask the applicant to list conditions or diseases for which he or she has been treated in the past, or whether the applicant has had a major illness in the past.

ADA Interviewing DON’Ts DO NOT: ► Ask whether the applicant has ever been hospitalized and if so, for what condition(s). ► Ask whether the applicant has even been treated by a psychiatrist or psychologist and if so, for what conditions.

ADA Interviewing DON’Ts DO NOT: ► Ask whether the applicant has ever been treated for any mental condition. ► Ask whether there is any health-related reason the applicant may not be able to perform the job for which he/she is applying.

ADA Interviewing DON’Ts DO NOT: ►Ask the applicant how many days he/she was absent from work because of illness last year. ► Ask whether the applicant has any physical defects or impairments which preclude him/her from performing certain kinds of work and if so to describe such defects or impairments and the specific work limitation.

ADA Interviewing DON’Ts DO NOT: ► Ask whether the applicant has any disabilities or impairments, which may affect his/her performance in the position for which he/she is applying. ► Ask whether the applicant is currently taking any prescription drugs.

ADA Interviewing DON’Ts DO NOT: ►Ask whether the applicant has ever been treated for drug addiction or alcoholism. ►Ask whether the applicant has ever filed for worker’s compensation insurance.

Volunteered Information • No matter how careful you are, some candidates will volunteer information you prefer not to know. • The best way to handle this is to not make any written note of it.

Extending an Offer of Employment • Essential information included in every offer letter • Revoking offers of employment

Commencing Employment • I-9 compliance obligations • Handbook acknowledgment forms • Restrictive covenants/Non-Disclosure and confidentiality agreements • Introductory periods/Evaluations

Follow Through: Look Back and Then Look Forward • Evaluate the hiring process and identify deficiencies • Review under a disparate impact theory • Is the new hire performing the job as defined?

PAYCHECKS AND OVERTIME PAY REQUIREMENTS

Wage and Hour Law • Wages are defined as “all remuneration paid for services, including commissions and bonuses.” • Minimum Wage • South Dakota has adopted the Federal minimum wage requirements. Accordingly, the minimum wage is currently $7.25 per hour. Tipped employees may be paid $2.13 an hour if their wage plus tips equals the current minimum wage level for non-tipped employees.

Sub-Minimum Wage • The Fair Labor Standards Act (FLSA) also provides for the employment of certain individuals at wage rates below the statutory minimum. Such individuals include: • student‑learners (vocational education students); • full‑time students in retail or service establishments, agriculture, or institutions of higher education • individuals whose earning or productive capacity is impaired by a physical or mental disability, including those related to age or injury. • Employment at less than the minimum wage is authorized to prevent curtailment of opportunities for employment. • Certificates issued by the U.S. Department of Labor (DOL) Employment Standards Administration's Wage and Hour Division are required for this type of employment.

Youth Minimum Wage • The youth minimum wage is authorized by Section 6(g) of the FLSA, and it allows employers to pay employees under 20 years of age a lower wage for a limited period -- 90 calendar days, not work days -- after they are first employed. Any wage rate above $4.25 an hour may be paid to eligible workers during this 90-day period. • The employee must be paid the regular minimum wage as soon as the employee turns 20 years old, or as soon as the 90 day period has expired, whichever occurs first.

Payment of Wages • All South Dakota employers must pay their employees on regularly agreed paydays, or at least once a month, whichever is more frequent. • Whenever an employee is separated from the payroll, all unpaid wages or compensation are due no later than the next regular stated payday or as soon thereafter as the employee returns all property in the employee's possession that belongs to the employer. • However, South Dakota has no state laws governing the timely payment for commissions and/or requirements for figuring commissions.

Payment of Wages • In any action for the breach of an obligation to pay wages, where a private employer has been oppressive, fraudulent, or malicious in his refusal to pay wages due to the employee, the employee is entitled to double the amount of wages for which the employer is liable. Crisman v. Determan Chiropractic, Inc., 687 N.W.2d 507 (2004).

Rounding of Time • Rounding of time that an employee has worked is allowed so long as the employer does not arbitrarily fail to count an employee's fixed or regular working time. Rounding to the nearest five minutes, one‑tenth or one‑quarter of an hour is acceptable if, in the aggregate, the employer compensates the employees properly for all the time they have worked.

Changing Employee Wages • Employers may increase or decrease an at-will employee's hourly wage at any time during the employment relationship. • In addition, an employer may change the manner in which the employee is compensated. For instance, an employer may switch an employee's compensation from an annual salary to an hourly wage. • However, if the employee resigns as a result of the change in compensation, the employer could be forced to pay the employee unemployment benefits if the State determines that the change in compensation resulted in a substantial modification to the terms and conditions of employment. • In addition, the employer should be aware that a change in employee compensation could be classified as an adverse employment action if it is shown that the change had the same effect as a demotion or pay-cut.

Vacation Pay & Sick Leave • South Dakota law does not require private employers to provide their employees with paid vacation or sick leave. • In addition, for employers who do provide vacation and/or sick leave, there are no state laws that require private employers to compensate their employees for accrued and unused vacation and/or sick pay at the termination of the employment. • However, employers are advised to follow the policies they currently have in place regarding payment for unused vacation and/or sick leave, as specific language in a handbook that details employee compensation and fringe benefits may be considered a contract. • In addition, there are no laws in South Dakota that prohibit employers from implementing "use it or lose it" policies to govern the vesting and accrual of an employee's vacation and/or sick pay.

Employee Breaks & Lunch Periods • South Dakota law does not contain any specific provisions regarding employee breaks or meal periods. In addition, federal law does not require lunch or coffee breaks. • However, when employers do offer short breaks (usually lasting about 5 to 20 minutes), federal law considers the breaks as compensable work hours that need to be included in the sum of hours worked during the work week. Further, compensable breaks should also be counted as work time when determining whether the employee is entitled to overtime pay under the FLSA. • Bona fide meal periods (typically lasting at least 30 minutes), serve a different purpose than coffee or snack breaks and, thus, are not work time and are not compensable. However, the employee must be completely relieved of all work-related duties during their meal break in order for the break to be considered non-compensable.

Deductions From Employee Paycheck • The employer may deduct the amount of cash shortages that are probably the result of theft or other misappropriation by the employee, even though such a deduction might take the employee below the minimum wage level. • The employer bears the burden of proving that the employee was personally and directly responsible for the misappropriation (see Mayhue's Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196 (5th Cir. 1972). • Ordinary cash register shortages, losses of money due to ordinary negligence, and losses due to damage, destruction, or loss of equipment may not be deducted from the wages of employees to the extent that the deductions would take employees below minimum wage.

Overtime Pay • There are no specific laws in South Dakota pertaining to overtime pay. • However, overtime compensation may still be claimed under the federal Fair Labor Standards Act (FLSA) for hours worked in excess of 40 during a given work week. Graham v. Babinski Properties, 562 N.W.2d 395 (S.D.1997). • Employees whose jobs are governed by the FLSA are either "exempt" or "nonexempt." Nonexempt employees are entitled to overtime pay. Exempt employees are not. • Most employees covered by the FLSA are nonexempt.Employees who are paid less than $23,600 per year ($455 per week) are nonexempt. • Conversely, to be exempt an employee must (a) be paid at least $23,600 per year ($455 per week); (b) be paid on a salary basis; and (c) perform exempt job duties. Exempt job duties typically include positions in which the employee performs "executive,“, "professional", "administrative" or “outside sales” duties as those terms are defined under the FLSA Regulations. • Further, employees who earn more than $100,000 per year are almost certainly exempt.

LABOR & EMPLOYMENT ACADEMY