Story and photos by Marshall Spiegel
You know the basics to keep in compliance with federal and state employment laws, but there always seem to be unique issues and questions that you are not sure how to handle. Kay Robinson, SPHR, Director of Human Resource Consulting Services with RSM McGladrey, answers your questions. This information should not be construed as legal advice.
Can an employer rescind an offer of employment before the candidate starts if you learn negative information about the candidate that impacts the ability of the candidate to perform the job?
This is a very tricky issue, and one that companies should try to avoid at all costs—especially if the candidate has already resigned from his or her job, has sold a house or has moved to your location, and you would be disadvantaging that individual. The lesson learned is to always conduct a thorough background check prior to an offer. It is also important that your offer letter—which is binding—be reviewed by legal counsel so that you can include conditions that need to be met for the offer to continue to be valid.
Are we able to require newly hired employees to sign an agreement to participate in binding arbitration instead of going to an agency (such as EEOC) to file a complaint (of discrimination, harassment, etc.)?
Yes. You can require new hires to sign an agreement, but you cannot require current employees to sign an agreement. You want to have language on the application that indicates that if the applicant is hired, he or she will be required to sign an arbitration agreement. The agreement should be a separate document, and you will definitely want legal counsel to help you develop appropriate language.
Our office is trying to go paperless. Can we keep personnel records on a computer or on a disc?
Yes, in most instances. But make sure that you have back-ups of files, and that they are stored off-site to protect from damage or loss. And in some cases, if you were to be audited, you would need to make copies of the requested documents for review. You will also want to make sure that you have a record retention protocol in place that meets the various requirements under state and federal laws.
What do you do when you find out a supervisor and an employee (subordinate) are dating?
Companies should consider implementing a dating policy to manage this situation, which can get sticky. This doesn’t mean no dating, just no dating between a supervisor and a subordinate, especially if down the road the relationship goes sour and the employee decides to file a sexual harassment charge against the company. If you don’t have a policy, you will want to be diligent in training all employees on your harassment policy and procedures, and include a discussion about the problems that can occur if there is an office romance.
We have an employee who is sensitive to fragrances. Do we have to accommodate him?
If the employee has been diagnosed with a sensitivity to fragrances, then this is considered a disability under the Americans with Disabilities Act (ADA). However, if you have fewer than 15 employees, you are not subject to ADA. But, as a best practice, you still may want to consider implementing a fragrance-free work place, which could be part of your dress code policy. If that’s not possible, perhaps consider installing an air purifier or allowing the individual to wear a respirator. At minimum, when you have all-staff meetings, consider a fragrance-free meeting room.
We are thinking about requiring applicants to take a pre-employment drug test. Can we do that?
For the most part, yes. But there are some states that have very specific requirements, so you will want to check with your attorney on specific state limitations. For example, in Oregon, breath tests for alcohol are prohibited unless the individual consents or the employer has suspicion. While most states allow a pre-employment drug and alcohol test prior to an offer being made, in North Dakota, drug testing is considered a medical exam, and under the Americans with Disabilities Act (ADA) you cannot conduct a medical exam until an offer of employment is made. (The offer, of course, is contingent on successful completion of the medical exam.)
We have a policy that requires employees to give two weeks notice if they resign. What if we don’t want to honor the two weeks and want the employee to leave today?
You can do that, but now instead of a resignation you are terminating the employee and he/she could then file a claim for unemployment benefits. So, if you feel strongly about removing the employee from the workplace, indicate to the employee that he/she will be paid for the two weeks but that he/she does not need to come back to work after the close of business today.