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  • Picture this: you’ve identified two ideal candidates for a job vacancy. They check all the boxes for qualifications and appear to be a perfect match for your company culture. During the final stage of the interview process, an employee asks Candidate A in passing about their marital status and whether they have children. This inquiry seemed harmless at the time, and you let it pass without much thought, however, when your company opts to hire Candidate B, you face a discrimination lawsuit from Candidate A.

    It’s no surprise that it takes a lot of questions to determine whether a candidate is the right fit for your company. However, you may not know that there are quite a few interview questions and topics that can land your company in trouble. Under the U.S. Equal Employment Opportunity Commission (EEOC), the supposed conversational question on marital and family status in the above scenario was illegal – and Candidate A was within their rights to follow legal action.

    Hiring is a stressful time for many reasons, and preparing your hiring team with the knowledge they need is one way to ensure compliance with federal laws and regulations.

    Employment Laws And Regulations

    Employment laws extend beyond federal regulations. There are several local, state, and city laws that your business is required to follow. One example of this is the city of Cincinnati’s Salary Equity Ordinance, a measure that took effect in March 2020. This ordinance made it illegal for employers in Cincinnati to ask about a job candidate’s pay history. California Labor Code 432.3, a state-wide law, similarly makes questions surrounding salary history illegal.

    While this ordinance relates to Cincinnati employers, there are many state and city laws across the country, so it’s crucial you fully understand your local regulations. Unlawful questioning can lead to various consequences, including discrimination lawsuits or an investigation by the EEOC, which can be frustrating and challenging to recover from.

    Problematic Topics For Job Interviews

    To safeguard your business, it’s crucial to understand illegal interview questions before you start the interview process. Typically, when you’re ready to fill a vacant position, you’re under time pressure, making it too late to meticulously review your questions for legal compliance. At this point, your business becomes vulnerable to potential lawsuits.

    Some illegal interview inquiries are clear – you shouldn’t ask questions about a job candidate’s race or sexual identity. However, there are several less obvious questions that are also illegal. In addition, as with the marital and familial status example, what you may see as a casual attempt at small talk can be interpreted as a topic that’s off-limits. This means that beyond reviewing your prepared interview questions, it’s crucial to equip your hiring team with guidance on safe conversational topics to avoid inadvertently broaching illegal subjects.

    To help you get started, here are some topics to avoid or proceed with severe caution:

    National origin and citizenship

    Any question regarding a candidate’s national origin can be an issue. The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for employers to base hiring decisions on a person’s citizenship or immigration status. Even a question about a candidate’s accent could be interpreted as an attempt at discrimination. You are, however, allowed to ask whether a candidate can legally work in the U.S., provide the required documentation if hired, and read, write, and speak English if needed.

    Religion

    Avoid questions that involve a candidate’s religion. Even roundabout questions like whether a candidate will need time off for religious holidays can be seen as non-job related and an attempt to discriminate against a person for their beliefs.

    Pregnancy status

    Even if the person interviewed is pregnant, it’s illegal to ask about their pregnancy. Not only does this violate set pregnancy discrimination laws, but it can appear as gender discrimination since male candidates won’t have to answer the same questions. General questions about any future planned leave are acceptable if the question isn’t tied to pregnancy. Focus the interview on other neutral job-related questions involving work responsibilities to see if the candidate can perform the necessary tasks.

    Disability

    The Americans with Disabilities Act (ADA) makes it illegal for employers to ask questions that “are likely to reveal the existence of a disability before making a job offer.” That means any questions regarding how many sick days an applicant took in the past year or what prescriptions they take.

    In addition, do not ask if an applicant will need reasonable accommodation unless you know the candidate has a disability. According to the EEOC, it’s acceptable to ask about reasonable accommodations if the applicant voluntarily reveals their disability or there is a clear visual sign, such as if the applicant uses a cane for a severe limp.

    Age or genetic information

    It’s only acceptable to ask about an applicant’s age if it’s directly tied to their job. For example, an individual working at a bar or other 21-plus environments will need proof of age. Even a question such as when an applicant graduated from high school can be viewed as an attempt to identify a person’s age.

    Arrest record

    According to the EEOC, no federal law prevents employers from asking candidates about their criminal history – although “Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964.” It’s important to note that while there’s no federal law against asking about arrest records, many states, such as California, Connecticut and Massachusetts, ban the practice. As such, check your state’s regulations before asking candidates about their criminal history.

    Protect Your Company During The Hiring Process

    Adding a new employee is an exciting step for any business, but it’s essential to ensure your business remains compliant throughout the process. Fortunately, there are many steps that you can take to avoid illegal interview questions. These include:

    • Establishing set interview questions for every candidate
    • Treat every candidate the same during the interview process
    • Take notes and document the results
    • Have more than one interviewer in the room

    Another way to help your business is to hire a professional employer organization (PEO) that can not only oversee employee hiring and training but also help you shoulder the administrative burden created by crucial HR functions. The GMS team can help you stay current on the latest rules and regulations while managing everything from your company’s payroll to employee benefits plans.

    Contact us today to learn more about what we can do to help you protect your company now and prepare for the future.

  • In the world of business, size doesn’t always guarantee perfection. Even giant corporations such as Walmart, with their immense resources and global reach, can make significant mistakes that impact their reputation and bottom line. A recent lawsuit against Walmart serves as a reminder that no company is immune to missteps, especially regarding employment practices. As a business owner, it’s crucial to learn from these errors and prioritize compliance with employment laws. One way to do this is by partnering with a professional employer organization (PEO).

    Walmart’s Misstep: The EEOC Lawsuit

    The U.S. Equal Employment Opportunity Commission (EEOC) recently took Walmart to federal court, alleging that the retail company terminated employees with disabilities due to their inability to pass an employment test. The lawsuit claimed that Walmart used an unlawful qualifications standard, known as the Pathways Graduation Assessment, and failed to provide reasonable accommodations for disabled workers, as required by the Americans with Disabilities Act (ADA).

    Shay Ahlborn, GMS’ HR Account Manager, stated, “Compliance with the ADA is imperative within organizations. Failure to comply with the ADA can result in legal consequences, fines, and lawsuits. However, GMS is here to assist employers with ADA and other employment law compliance through onsite HR management with extensive experience in state and federal employment laws.”

    The Pathways Graduation Assessment: A Problematic Test

    Walmart’s Pathways Graduation Assessment was a computer-based test designed to measure employees’ knowledge of various job-related aspects, including customer service, inventory management, retail fundamentals, and merchandising. If employees failed the test after three attempts, they faced termination.

    Lessons For Business Owners

    The EEOC’s lawsuit contended that this assessment was not job-related and did not meet the criteria of business necessity for certain positions. The agency argued that the test effectively screened out or tended to screen out individuals with disabilities, violating the ADA. This case highlights a crucial lesson for all businesses: while performance standards are essential, they must be fair, job-related, and not discriminate against any protected group, including individuals with disabilities.

    Key Takeaways For Business Owners

    1. Prioritize compliance: Compliance with employment laws, especially those related to disabilities and equal opportunity, should be at the forefront of your business practices. Take proactive steps to ensure your hiring and employment assessments align with ADA requirements.
    2. Provide reasonable accommodations: The ADA mandates that employers provide reasonable accommodations to individuals with disabilities. Be ready to accommodate employees during tests or other evaluations, such as offering extra time or switching to a different format.
    3. Communicate openly: Inform job applicants and employees of their right to request reasonable accommodations during assessments. Establish an interactive process to address these requests promptly and efficiently.
    4. Choose fair assessments: Ensure that any pre-employment tests or assessments are fair, job-related, and unbiased. Seek legal guidance if needed to develop assessments that comply with employment laws.
    5. Mitigate risks: Recognize that employment-related lawsuits can have substantial financial and reputational consequences. Taking proactive measures to prevent discrimination and wrongful termination is not only ethical but also financially prudent.
    6. Consider partnering with a PEO: To navigate the complexities of employment law, many businesses choose to partner with a professional employer organization (PEO). A PEO can provide expertise in HR compliance, assist with reasonable accommodations, and help manage employee assessments effectively.

    Have You Considered Partnering With A PEO?

    Walmart’s lawsuit serves as a reminder that even the largest corporations can stumble regarding employment practices. As a business owner, you can learn from their mistakes and build a workplace that values diversity, compliance, and fairness. Partnering with a PEO like GMS can be a wise decision, offering the expertise needed to navigate the intricate landscape of employment law while ensuring that your business thrives and avoids costly legal battles. By prioritizing compliance and inclusivity, you can create a workplace where employees of all backgrounds and abilities can succeed and flourish. Contact us today to learn more!

  • In an era of relentless job market transformations, the U.S. Equal Employment Opportunity Commission (EEOC) is expanding a roadmap for 2024-2028. Their recently unveiled Strategic Enforcement Plan (SEP) emphasizes their commitment to safeguarding the rights of American workers, particularly in the face of new challenges brought about by artificial intelligence (AI), pregnancy-related issues, and the long-lasting effects of COVID-19.

    A Fresh Perspective On Discrimination

    The updated SEP is not just business as usual; it represents a forward-thinking approach to addressing employment discrimination. The following is what you need to know about the EEOC’s strategic priorities:

    1. Tackling discrimination head-on: The EEOC will focus on discrimination, bias, and hate directed against religious minorities, racial or ethnic groups, and LGBTQ+ individuals. This commitment underscores the agency’s dedication to ensuring equal opportunities for all.
    2. Expanding the safety net: The agency aims to expand the vulnerable and underserved worker priority to encompass more categories of workers who may be unaware of their rights or historically underserved by federal employment discrimination protections. This shift promises to extend protection to those who need it most.
    3. Adapting to new challenges: The SEP recognizes the need to address emerging issues, including pregnancy, childbirth, and related medical conditions, the long-term effects of COVID-19 symptoms, and technology-related employment discrimination. As technology plays a pivotal role in hiring processes, the EEOC is poised to safeguard workers from AI-driven biases.
    4. Advancing workplace diversity: The underrepresentation of women and workers of color in specific industries remains a concern. The EEOC plans to spotlight these disparities in sectors such as construction, manufacturing, finance, and technology.
    5. Technology and the workplace: Acknowledging the increasing use of technology, especially AI and machine learning, in recruitment and hiring, the EEOC will ensure that these tools do not perpetuate discrimination but promote fairness and inclusivity.
    6. Protecting legal rights: The EEOC is committed to preserving access to the legal system. This includes addressing overly broad waivers, releases, nondisclosure agreements, or non-disparagement agreements that might restrict workers’ ability to seek remedies for civil rights violations.

    A Collaborative Approach

    The SEP isn’t just about enforcing compliance; it’s about fostering a collaborative environment. It encourages employers to proactively identify and remove barriers to equal employment opportunity. This means cultivating diverse talent pools, dismantling obstacles to progress, and creating inclusive workspaces.

    Informed By The People

    The EEOC didn’t arrive at these strategic priorities alone. They hosted three listening sessions, engaging with nearly three dozen representatives from various backgrounds, including civil rights and workers’ rights organizations, employers, HR professionals, and legal experts. This inclusive approach ensures that the SEP reflects the concerns and experiences of those directly affected by workplace discrimination.

    A Two-Pronged Approach

    The SEP works hand in hand with the EEOC’s overarching strategic plan. Together, they create a comprehensive framework for advancing the agency’s mission. This includes increasing accessibility to the public, enhancing training and resources for investigations, and focusing on key areas such as sexual harassment, pay discrimination, and the impact of AI in the workplace.

    EEOCs And PEOs

    As we navigate the complex terrain of evolving workplaces, it’s essential to recognize the pivotal role that a professional employer organization (PEO) can play in this transformative landscape. PEOs like GMS offer a strategic partnership, providing businesses with the expertise needed to navigate compliance, HR challenges, and the nuances of an ever-changing employment landscape. By leveraging the power of GMS alongside the EEOC’s vigilant efforts, we can pave the way for workplaces that are not only compliant with the law but also truly inclusive, diverse, and equitable. Together, we can march forward, ready to face the challenges of AI, pregnancy-related issues, and the long-term effects of COVID-19 with unwavering determination, knowing that the EEOC and PEOs stand as guardians of workplace equality and justice. Contact us today to learn more.

  • In a significant shift from recent years, the U.S. Equal Employment Opportunity Commission (EEOC) has announced updated deadlines for employers to submit their demographic data. The EEO-1 Component 1 data collection for 2022 is set to kick off on October 31st, 2023, with the deadline for employers to file their EEO-1 reports now extended to December 5th, 2023. This shift in the filing cycle is bound to impact businesses across the nation, prompting employers to adapt to the new timeline and understand the implications of these changes.

    Who Needs To File EEO-1 Reports?

    Private employers with at least 100 employees must file the EEO-1 form annually. This form essentially provides a snapshot of the racial, ethnic, and gender composition of their workforce broken down by specific job categories. In addition to private employers, federal government contractors and first-tier subcontractors with 50 or more employees and at least $50,000 in contracts must also submit EEO-1 reports. However, it’s important to note that state and local governments, as well as public school systems, are exempt from this requirement.

    Streamlining The Reporting Process

    One of the most notable aspects of this year’s changes is the shift in the filing cycle. In the past, employers were accustomed to deadlines in May or June. The new timeline aims to streamline the reporting structure, making it more accessible for employers to prepare and submit their EEO-1 reports. This change is a welcome development for many employers who have struggled with previous deadlines.

    One-Year Approval From The White House

    It’s essential to note that the White House Office of Management and Budget (OMB) extended this approval of the EEO-1 form for only one year, despite the EEOC’s request for a three-year approval. While this extension allows the EEOC to proceed with collecting EEO-1 reports this fall, it leaves the future of the EEO-1 reporting format uncertain.

    The primary change accompanying this newly approved EEO-1 form is eliminating Type 6 reports. While only a few employers used these reports, they allowed employers to provide summary data for facilities with fewer than 50 employees. The new EEO-1 report will require employers to provide demographic data for all facilities, regardless of size, creating a more comprehensive overview of workplace diversity.

    Possible Changes To Race Categories

    An aspect that remains unchanged for the 2022 data collection is the race categories on the EEO-1 form, which include white, black or African American, Native Hawaiian, or other Pacific Islander, Asian, American Indian or Alaska Native, and two or more races. On the form, Hispanic or Latino is categorized as an ethnicity, not a race. However, recent comments in court documents during the Supreme Court’s affirmative action case have suggested that these race categories might be overly broad and could undergo revisions in the future.

    Partner With GMS

    As the deadline for EEO-1 submission looms and businesses prepare to meet their reporting obligations, the role of a professional employer organization (PEO) emerges as a powerful partner. PEOs like Group Management Services (GMS) are not just about compliance; they are the bridge to a future where diversity, equity, and inclusion are seamlessly integrated into the workplace fabric. By partnering with GMS, businesses can access expert guidance, streamlined reporting processes, and comprehensive support. Together, we can confidently navigate the complex landscape of EEO-1 reporting, ultimately fostering an environment where employees’ potential is realized, and their contributions are valued. In this partnership, businesses meet regulatory requirements and lay the foundation for a more equitable and prosperous future. Contact us today to learn more.