Matus Law Office

FAQ: Employment Law

FAQ: Labor &

Employment Law

What Kinds of Questions Should An Interviewer Avoid Asking a Job Candidate?

What employment policies are essential to any business?

Does It Make Sense To Use a Mandatory Arbitration Agreement?

 

What Kinds of Questions Should An Interviewer Avoid Asking a Job Candidate?

How frequently did you use sick leave at your former employer?

If asked before extending a job offer, this question could violate the Americans With Disabilities Act (ADA) or the Illinois Human Rights Act (IHRA) because employers cannot inquire about possible disabilities during the initial part of the recruitment process. However, an employer can ask this question after it makes a job offer, so long as it asks the question to all new hires, not just the ones who appear to have a disability. 

Have you ever had a problem with alcohol or illegal drugs?

Past alcohol or drug use can be considered a disability under the ADA and IHRA if the applicant is going through a rehabilitation program. Employers can ask about current use of illegal drugs and may require applicants to take a drug test.

Has anyone in your family ever had cancer?

Asking applicants for medical history violates the federal Genetic Information Nondiscrimination Act (GINA). Moreover, if an employer requires applicants to have a medical examination as a condition of employment, the employer must tell the health care provider performing the examination that he or she should not inquire into family medical history.

Have you ever been arrested?

The IHRA prohibits questions about past arrests or criminal history that has been expunged.  Moreover, Illinois also has passed another law which prevents most employers from asking anything about criminal history in a job application. In most circumstances, employers may only inquire into criminal history after an applicant has been determined to be qualified for the job and invited for an interview (or, if there is no interview, after the employer extends a conditional job offer).

What is your credit rating?

Under the Illinois Employee Credit Privacy Act, employers may not ask about an applicant’s credit history. The only times when this question can be permissible is if the employee is required to be bonded, has access to business assets worth at least $2,500, is a manager, works with personal or confidential information, or has authority to bind the business in transactions of $100 or greater.

Are you a U.S. citizen?

This question could violate provisions of the federal 1964 Civil Rights Act and the Immigration and Nationality Act, as well as the IHRA. Employers can ask if an applicant is authorized to work in the United States and they are required to view an applicant’s work authorization documents during the I-9 verification process.

When did you graduate high school?

This question could help an employer determine the age of an applicant and would violate the Age Discrimination in Employment Act and the IHRA. It is permissible to ask if an applicant graduated or similar questions about qualifications.

How many kids do you have?

Questions like this will likely be viewed as potential sexual discrimination. However, if asked of all candidates, a recruiter can inquire whether an applicant has any commitments that prevent him or her from working during the regularly-scheduled work hours for the position.

Did you receive an honorable discharge from the military?

Employers are barred under the federal Uniformed Servicemembers Employment and Reemployment Rights Act from asking about the type of discharge a veteran received unless discharge status could affect the ability to perform the position (for example, if the position requires a security clearance). Employers can ask about a veteran’s education and duties while in the military.

Can we “friend” you on Facebook?

Under Illinois law, an employer cannot require an applicant to disclose a user name or password, or to otherwise permit access to private portions of the applicant’s social media accounts. An employer can review publicly accessible information on the internet.


What employment policies are essential to any business?

Sexual harassment policy

Courts have ruled that if an employer takes reasonable care to prevent and promptly correct harassment, the employee fails to take advantage of the employer’s procedures, and the harassment does not result in the victim’s discharge or other tangible harm, the employer can usually defeat a harassment lawsuit, even if the perpetrator is a supervisor. A sexual harassment policy is often the primary way employers establish this defense.  

Employment status policy

When an employer begins to adopt several employment policies or an employee handbook, it can potentially expose itself to claims that the policies or handbook create contractual obligations binding the employer. Employers can avoid this trap by drafting a policy stating that employees are employed on an “at-will” basis, in which either the employer or the employee can terminate the employment relationship at any time and for any or no reason. Employers should also indicate that their employment policies can be revised or eliminated at any time and that the policies do not impose any contractual obligations on the employer.

Time off/leave of absence policy

This is a rapidly changing area of employment law. The City of Chicago and much of Cook County require employers to provide paid sick leave to employees. Larger employers are required to offer unpaid medical or family leave under the federal Family Medical Leave Act. Aside from these legal obligations, most employers want to provide paid time off as an employment perk. Adopting a time off and leave of absence policy can protect a business in several ways:  the policy can specify the rate at which time off is earned or when and what form of notice is required before taking time off, as well as preventing employees from claiming that unused time off should “roll-over” into the following year.

Electronic communication and computer use policy

Many employers are surprised to find that unless they adopt a policy providing otherwise, employees may be able to assert that communications that they send during work hours are private, even if the communication is sent from a company computer and email service. An electronic communication and computer use policy can prevent an employee from making this type of claim. These policies can also emphasize that other employer policies, such as its discrimination and harassment policies, apply to social media postings, email or other electronic communications. 


Does It Make Sense To Use a Mandatory Arbitration Agreement?

When an employer enacts an arbitration agreement, all workplace disputes are resolved by a private decision-maker, rather than in court by a judge or jury. For many employers, the advantages of arbitration are significant. Most courts that have looked at the issue have ruled that an arbitration agreement can contain a class-action waiver. Even when the underlying claim in a class-action suit is flimsy, it can be very costly to litigate – so a class-action waiver is a huge advantage. To a certain degree, employers can craft an employment agreement to include other advantages, such as a requirement that claims be filed sooner than is otherwise required under the law or an obligation to arbitrate claims in a designated location. Additionally, arbitrations are private and often are resolved faster than a court case.

On the other hand, there can be a substantial downside to arbitration. Employers also have to arbitrate claims against employees and there may be some claims that the employer will prefer to be in court. Employers must pay the large majority of the costs of arbitration, which can be substantial. Some employers are finding that arbitration can take as long as a court case. Perhaps most importantly, it is extremely difficult to overturn an arbitrator’s decision. This means that employers may have to accept a ruling that could have been reversed by an appeals court had it been made by a trial judge or jury.