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Jul 10 2017
Harassment & DiscriminationHiringQ&A

Q&A: Should we use employment tests to help us identify the best candidates?

Answer: Tests can be useful in identifying top job candidates, but it’s important to be thoughtful about how you incorporate testing into your hiring processes. Of course, it makes sense to select the most qualified candidate. However, you must ensure that your testing avoids a discriminatory adverse impact on the basis of a protected status…

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Jul 05 2017
DisabilityHarassment & DiscriminationHiring

Q&A: Post-offer medical testing problematic when hiring temp agency employees

Question: We currently contract with a temporary employment agency for workers and will hire some of these workers after 90 days of successful work. We require all new regular employees for production and maintenance positions to undergo a pre-employment (post-offer) medical test. When we offer regular jobs to the temp agency employees, can we require…

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Jun 12 2017
DisabilityQ&A

Q&A: Employer doesn’t have to promote to accommodate disability

A: No. Your obligation under the Americans with Disabilities Act (ADA) is to reasonably accommodate her disability so that she can perform the essential functions of her job. To figure out what this accommodation might be, you must engage in back-and-forth dialogue with the employee to determine what she needs—usually with help from her doctor—and…

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May 15 2017
Leave LawsQ&A

Unmarried employee entitled to FMLA when girlfriend gives birth?

A: Time off for the birth and to bond with the child may qualify as protected time under the federal Family and Medical Leave Act (FMLA). However, time spent caring for the employee’s pregnant girlfriend prior to giving birth would not qualify as FMLA (e.g. if the girlfriend was on bed rest during pregnancy). In…

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May 05 2017
DisabilityDrug and AlcoholQ&A

Q&A: Is leave for jail time a reasonable accommodation for alcoholism?

Answer: No. The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate a disability, such as alcoholism, but the ADA has a unique rule for bad behavior related to the use of alcohol or illegal drugs. Disability Rights and Alcohol Under the ADA, an employer “may hold an employee who engages in the illegal…

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Apr 27 2017
Q&ASafety and HealthWashington

Q&A: Can we discipline for failure to promptly report an injury?

Answer: Ask the employee why she didn’t report the injury when it happened. Your ability to discipline will depend on when she became aware of the injury, and whether any barriers prevented her from reporting. For example, if she admits that she felt a sharp pain when picking up a heavy load, then she knew…

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Apr 18 2017
HiringPrivacy & ConfidentialityQ&A

Q&A: Use caution before telling the truth about former employee

Answer: Not so fast! A signed release seems like a golden ticket to share your true feelings and frustrations about a former employee, but the release may not actually provide you with legal protection. In fact, that’s exactly what an Indiana medical clinic recently found out the hard way. In their situation, the clinic settled…

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Apr 18 2017
Harassment & DiscriminationHiringQ&A

Q&A: Hiring a transgender receptionist

A: No. Customer-facing jobs, such as receptionists and sales representatives, are often tied to having a socially acceptable “look.” While it is perfectly legal to require a professional, clean appearance, it is generally illegal to require an employee to look like a specific gender. This is considered gender stereotyping, and there is a long line…

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Mar 07 2017
ImmigrationQ&A

Q&A: What to do if ICE contacts your business

Answer: ICE, the federal investigative arm of the Department of Homeland Security, typically would make contact with your organization by presenting an onsite warrant to search your premises, or by giving verbal or written notice of an audit of your I-9 forms. If ICE contacts you, inform your Vigilant employment attorney or other legal counsel…

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Feb 22 2017
Leave LawsQ&A

Can an ex-employee who joined the military demand their job back?

A: Yes. Generally, former employees who have served in the US military have up to five years after entering the service to return to their former job. The right to reemployment is guaranteed under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), provided the eligibility requirements have been met. On top of that,…

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Feb 06 2017
DisabilityHiringQ&A

Q&A: Think twice before revoking job offers based on red flags

Answer: You have the right to revoke an offer when you have a legitimate, non-discriminatory reason, such as not hiring someone who was terminated for attendance violations. However, in this case it’s not that simple. Two other key issues about his prior job surfaced: he alleged a disability and he filed a claim against his…

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Feb 01 2017
Leave LawsQ&A

Do we have to give FMLA leave to remote employees?

A: Maybe. There are two different thresholds to determine whether someone is eligible for leave under the federal Family and Medical Leave Act (FMLA). First, the employees must have worked for you for at least 12 months (which need not be consecutive), and have worked 1,250 hours in the 12 months before the leave is…

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