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CHAPTER 1
In the Beginning: Applications, Interviews, Accepting the Job, Contracts
Can They Really Ask That on My Application?
For many employers, the employment application is the first contact they have with you as a prospective employee. What can they ask you? What does it mean? How should you answer some of those questions? Here are some areas of concern in your employment application:
Arrests/Convictions: In some states, companies aren't allowed to ask about arrests, but if they do, answer truthfully. Same with convictions. If your conviction is expunged, check the state's law where the expunction happened. In most states, if the conviction is expunged, you can honestly answer "no" to questions about arrests and convictions, with certain exceptions (such as law enforcement jobs). Precluding applicants from being hired due to an arrest or conviction might also have an adverse impact on minorities, and could be discrimination. If they ask this, get a copy of the application or make a note of the exact question and your answer.
Age, Sex, Religion, Race, National Origin, Disability, and Genetic Information: Your employer isn't supposed to ask questions that reveal a protected status. What do you do if they ask these questions? Answer truthfully, but keep a copy of the application with the inappropriate question. If you're turned down, it might give you ammunition for a discrimination claim later. If you want the job, don't make a stink about the question. If you feel you must raise the issue, get hired, and then point it out gently after you've become a trusted employee of at least six months to a year.
Credit Information: Many employers still conduct credit checks on prospective employees. Credit checks may have an adverse impact on women and minority applicants. If you think you've been denied a job due to a credit check, you may have a discrimination claim. Your application will ask for your written permission to conduct the credit check if the employer intends to run one on you. If you don't give permission and the credit check is run anyway, the employer is violating the Fair Credit Reporting Act and possibly your state's law.
Bankruptcy: It may be legal for an employer to refuse to hire you because you had a bankruptcy. The bankruptcy is public record and will be revealed in a background check.
Workers' Compensation Claims: Even though most states make it illegal to fire you for making a workers' comp claim, few states prohibit hiring discrimination based on workers' compensation claims. Even in those states that bar workers' compensation discrimination, the claims are public record, and the employer may find out about them. Workers' comp information may well reveal the existence of a disability, so employers who use this information against applicants do so at their peril.
References and Job History: Do you list the supervisor you reported for sexual harassment? Do you list the job where you were fired for blowing the whistle on securities violations? The legal answer is yes. Omitting employment history will give an employer an excuse to fire you later, and it will probably come up in a background check. Many companies have reference checking phone numbers where HR will only give neutral references: dates of employment and job title. If the employer was a problem employer, list the neutral reference line. Or you may have a supervisor who will still say something positive. List him or her instead of the one you know will slam you.
Signature: Some sneaky employers are putting all kinds of contractual provisions into employment applications. They may ask you to waive trial by jury, or to waive your right to go to court and force you into arbitration, and the courts are allowing these provisions to stand in some states. Beware the employer that puts these provisions in applications. Your employment with them will likely be a matter of the company constantly operating in defensive mode, treating employees as the enemy.
Lying on the Application: It's tempting to lie when you are asked a difficult question on the application. Think carefully before you do this. The consequences of lying about anything, such as job history and terminations, are that, if the employer finds out you lied, even years later, they can fire you. It can also be used as a defense to a lawsuit in order to cut off your damages. The employer will say that they could have fired you because you lied, so your right to lost wages/back pay is gone.
Donna's Tips
* Answer truthfully. That's the legal answer. Career advisors will tell you to carefully frame your answers or even omit information. They're not wrong, but I can't advise you to do anything but tell the truth.
* You might want to hire a professional reference checking company to find out what prospective employers will say about you so you can tailor your application and interview accordingly.
* Some employers (those with at least 100 employees and government contractors) are required to report race, gender, and ethnic information of all employees to the government, and some do track this information for affirmative action purposes or other legitimate reasons. They may have to ask this information on a form separate from your application, such as on a "tear sheet." However, if this is asked pre-employment, you should make note of it and keep a copy if possible.
Can They Discriminate Against Me Because of My Bankruptcy?
The Bankruptcy Code says: "No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt. ..." Seems pretty clear, huh? Ordinary mortals read the language "or discriminate with respect to employment against" to include discrimination in hiring.
The federal appellate courts, as we know, are not made up of ordinary mortals. Several appellate courts have found that this provision did not apply to discrimination in hiring. One court said, "Had Congress wished to bar private employers from discriminating against debtors in their hiring decisions, it could have done so by adding the phrase 'deny employment' to [the law] when it amended [the law] in 1994 and again in 2005."
Why the tortured logic? Well, it's at least partly Congress's fault (isn't it always?), because they put hiring in a provision about government employers. From the Bankruptcy Code:
[A] governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated. ...
These courts assume that Congress thinks like they do (Congress doesn't) and they are failing to take into account that the two provisions weren't passed at the same time.
Sure, Congress could have included that language. But congress people are ordinary mortals who assumed that the phrase "discriminate with respect to employment" meant what it says. These cases are popping up all over now. Maybe the Supreme Court will decide which interpretation wins out. So far, they have declined to review these cases.
In my opinion, employers who refuse to hire you just because of your bankruptcy are idiots. What on earth does that have to do with your skills? Why exclude an increasingly large number of potential candidates just because the economy tanked?
Donna's Tips
* If you have a bankruptcy and the employer is doing a background check, disclose it up-front. That way you don't waste your time if they consider it an automatic disqualification.
* Encourage your Congressperson to act to change this messed-up law.
* Follow this issue closely, because it will be in flux for a while until the Supreme Court or Congress fixes it.
Wait, They Can't Discriminate Because of My Criminal Record, Can They?
Discrimination based on your criminal record is mostly legal. However, if your record was expunged, you may be legally able to answer "no" if asked whether or not you've ever been convicted of a crime. Know the law in your state. If you're arrested, you'd better understand the employment consequences before you agree to cop to a plea.
At least one state has a law making discrimination based on criminal records illegal. A few others won't allow employers to ask about arrests or convictions. Others have established commissions to possibly address discrimination against ex-offenders by employers. A couple of states have limits on whether your occupational license can be revoked/denied. Some have processes you can go through to limit disclosure of your records to employers. Most still allow employers to ask about criminal records.
Some jobs, like law enforcement, teaching, and the military, don't allow you to hide behind an expunction. If you're applying for a job, check the laws in your state to make sure you're allowed to fail to disclose a conviction.
A "no contest" or sealed conviction is still something you must disclose if asked in most states. Unless your record is expunged or sealed, it is public record, and a potential employer could uncover it in a background check.
If you fail to disclose a criminal record when asked, and you aren't allowed to say it didn't happen (as with an expunction), then the employer can fire you for failing to disclose it, even if you've worked there for years with no problems.
In my view, this issue will be ultimately addressed as one of disparate impact on minorities, like credit checks. With the disproportionate amount of African-Americans in our system, it's only a matter of time before some cases emerge saying criminal history discrimination equals race discrimination. The EEOC takes the position that blanket refusals to hire people with convictions may indeed have an adverse impact on minorities. Right now, assume you'll have to disclose it and prepare with a career counselor on how to answer questions about a conviction in interviews and applications.
Donna's Tips
* When in doubt, tell the truth.
* Know what you were convicted of and whether or not the record was expunged. Lots of my clients have no idea the actual charges that they were convicted of. It makes a difference. If you don't care about your criminal record, many employers assume that you think committing crimes is okay.
* In a lawsuit, the lawyer from the other side is allowed to ask whether you have ever been convicted of a felony, and whether you've ever been convicted of a crime involving dishonesty. Assume the other side will find out if you're lying. It's best to tell your lawyer in advance if you have a conviction so he or she can be prepared to deal with it.
They Can't Ask That During My Interview, Can They?
Interviewers ask the darndest things. Some of it actually has to do with your ability to do the job. Some has to do with how you'll fit in with coworkers and the corporate culture. Every once in a while, they ask something inappropriate.
Here are examples of questions that may force you to disclose a legally protected status:
Arrests/Convictions: Some states don't allow interviewers to ask about arrests or convictions, but most still do. Mostly, interviewers don't ask about this. You're more likely to be asked on the application. If the interviewer does ask, then you may be able to answer "no" truthfully if your record is expunged, but probably not if it's just sealed. You should check the state where you were arrested to see how it deals with sealing and expunction. If you aren't hired and the conviction had nothing to do with your ability to do the job, you might also have potential discrimination claims. Minorities and men are definitely more adversely impacted by a blanket exclusion of people with records than women and whites, because they're statistically more likely to have a criminal history.
Age, Sex, Religion, Race, National Origin, Disability, and Genetic Information: You'd think that questions about race wouldn't come up in interviews because race is usually apparent once you're face to face. But I've actually met people who were asked flat-out: "What are you?" or "What race are you?" The interviewer isn't supposed to ask questions that reveal a protected status. If the interviewer does ask, answer truthfully.
Some examples of questions that actually do come up frequently because people are curious, no matter how well-trained they are:
* Where are you from? Seems harmless, but if you're from, say, Iran, the interview might turn sour quickly.
* What happened to you? An interviewer who sees you in a cast, on crutches, or even in a wheelchair might not be able to resist.
* Can you work Sundays (or Saturdays)? Why not? You might be forced to disclose your religious beliefs if you have holy days that must be accommodated.
* What year did you graduate high school? College? If your answer is in the 1980s, 1970s, or earlier, you can almost hear the interviewer doing math in his or her head.
* Why have you been out of the job market so long? In some states, it's illegal to discriminate against you because you're unemployed. This question might force you to disclose a disability, kids, marital status, domestic violence, or another protected status.
* Do you have any kids? How old? This is pretty normal to ask anyone in conversation, but it might reveal a recent pregnancy, maternity leave, marital status, or need for breastfeeding accommodations. The interviewer might look at women with kids differently than men with kids. He or she might start asking questions about your ability to travel, or work weekends or evenings, or how you deal with sick kids.
Lawsuits: If you're asked whether you've ever been in a lawsuit, there are all kinds of potential land mines. If you reveal a foreclosure or a bankruptcy (which isn't technically a lawsuit), you're revealing credit information. If you reveal a divorce, it's marital status. If you've sued an employer or made a workers' compensation claim, you might have to kiss the job goodbye even if they supposedly aren't allowed to retaliate against you. If you reveal a personal injury claim, you might also be revealing a disability. Questions about lawsuits are more likely to come out if there's been a background check already. Employers who ask about or look into lawsuits are asking for trouble, but that doesn't mean they won't do it anyway.
Donna's Tips
* An inappropriate question doesn't mean you've just been handed a lottery ticket. The fact of asking the question isn't enough, by itself, for you to sue. The question may, however, be evidence that the hiring decision (or later employment decision) was based on something illegal. Write it down when you get in the car or out of the building. Make a note of the question, your answer, and anyone present who heard it.
* Answer truthfully. There are ways of answering truthfully that might be better than others. If you have a protected status you are concerned about, be ready for questions like these. Practice how you will answer. Ask for advice from a career counselor or trusted advisors.
* If you did reveal your protected status and were turned down, try to find out who was hired. If you were more qualified, you might have a case.
Can My Potential Employer Make Me Take a Lie Detector Test?
Mostly, the answer is no. The Employee Polygraph Protection Act of 1988 prohibits private employers from using lie detector tests to screen potential employees or during the course of their employment, with some exceptions. It doesn't apply to government employers. Here's what you need to know about polygraphs at work:
Can't Suggest: Employers can't suggest, require, request, or cause an employee or potential employee to take a polygraph.
Can't Ask: Employers cannot inquire about, use, accept, or refer to polygraph results of employees or potential employees.
Can't Retaliate: Employers can't discriminate against employees or potential employees who refuse to take a polygraph. That means no discharge, discipline, denial of employment, or threats.
Exceptions for Potential Employment: Security firms, pharmaceutical firms that handle controlled substances, and federal contractors that handle issues of national intelligence have some limited exceptions that apply to polygraphs and to other types of lie detectors.
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Excerpted from "Stand Up for Yourself Without Getting Fired"
by .
Copyright © 2012 Donna Ballman.
Excerpted by permission of Red Wheel/Weiser, LLC.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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