In recent months, there are a lot of new laws that have impacted businesses and we get many questions from our customers on how these new hiring laws are going to affect them and how they can stay in compliance with their state laws. In this week's Workstream webinar, we shared laws as they're written along with insights from the hiring managers we work with about how they keep up to date on regulations, and how they make sure that their hiring managers are still in compliance with those laws. We also covered what laws have often go ignored and share how you can avoid them and maintain a legal hiring process.
Read on for the full transcript:
Table of contents
(01:34 - 05:57)
- Most of the companies we work with are based in the US so we focus on the Equal Employment Opportunity Commission (EEOC).
- Under the laws enforced by EEOC, it is illegal to discriminate against someone, be it an applicant or an employee, because of that person's race, color, religion, sex (including gender identity), sexual orientation, pregnancy, national origin, age 40 or older, disability, or genetic information.
- In the past, it was "over 40", but that changed recently to "40 or over".
- This means that you're prohibited from using neutral employment policies and practices that have disproportionately negative effect on applicants of a particular group listed above.
- If the policies or practices at issue are not job-related and necessary to the operation of business, there's a chance that one will risk getting called out especially if one is in a huge reputable brand in the franchise business.
- It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying because of race, color, religion, age.
- Often, people make the mistake of saying things like this is a great job for recent college graduates, and that's also considered discriminatory.
- The information that you are obtaining as you go through the pre-employment process, should be limited to essential questions to determine whether or not they're qualified for the job.
- Questions about the organizations, clubs, society or anything that can indicate an applicant's race, sex, national origin, disability, status, age, religion, color, or ancestry should generally be avoided.
- We often see people asking about the organizations that somebody was part of in college or the clubs or societies. These should be avoided as a questionnaire but instead you can rephrase it to be What do you participate in your free time? What are the organizations you participate in your free time? and have as an exception unless this is something that would have indicated race, sex, national origin, disability etc. In that event, you can have a disclaimer or just don't ask about it.
- Commonly overlooked, the following pre-employment inquiries may be regarded as evidence of intent to discriminate:
- Questions that ask whether one is pregnant again.
- Questions about child care arrangements.
- Questions that ask what does your husband do for work, what's your husband's name, do I know them.
- You can also go to eeoc.gov for more information. They'll go into all of these specifics about race, height, weight and financial information - all the questions you can and cannot ask to comply with federal laws.
(05:58 - 07:57)
- In the past year and a half, there have been a lot of updates as states expand their anti-discrimination and harassment regulations.
- California now protects hairstyles, Connecticut expanded its sexual harassment training requirements for employers, Illinois now has just one employee that it takes for it to be applicable, New York now prohibits discrimination on the basis of reproductive health decision making or domestic violence. These have all gone into effect in 2020.
- Washington passed new anti-harassment protections and trading requirements for the hospitality and retail workers as well as those working for property services contractors and security companies - that goes into effect first for those groups, January 1st 2020. For all the other covered employers, they go into effect at the end of or at the very beginning of next year (2021).
- Avoid asking people about their pay equity and salary history - new equal pay protections for Connecticut includes a ban on salary history questions, New Jersey employers are barred from asking questions about a worker's wage and salary experience, New York prohibited from seeking salary history from applicants and there are privacy regulations.
- We will be focusing on California because that is a broad one that is starting to be applied in other states and will probably be happening over the next few years.
California State Laws
(07:58 - 11:35)
- The California Consumer Privacy Act (CCPA) makes companies take steps to let the applicants know what information is being collected and give them an option to opt out of the communication and how their information is being used and processed.
- You can check CCPA to find out exactly what disclaimers are, or if you're a Workstream user, just ping your lovely Customer Success person and they can tell you what disclaimers to include.
- With effect starting last month (July 2020), under the California Department of Fair Employment and Housing's new regulation, all the things that used to say employment are now pre-employment as well - it means that there are restrictions on the questions you ask in the pre-employment screening process.
- The types of questions that you wouldn't be allowed to ask a current employee are also questions that you can't ask an applicant.
- This means that you can't request an applicant's age, date of birth, or their graduation dates. They could include it on their resumes but you can't explicitly ask them to fill in their graduation date if you have a form asking about their college and or high school experience. You also can't have a maximum experience limit in job ads - you can say things like at least six years of experience but you can't have a range of like six to eight years of experience. Those are seen as being negatively impacting people who are age 40 and older.
- When you request scheduling information (whether you do it within Workstream for interviews, follow-up meetings, what an applicant's availability is for work), you can't have any questions that would somehow disclose a religion, disability or medical condition. To avoid this, you can have either of these two quotes in your screening questions (taken directly from the California government website):
- Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?
- Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?
How Workstream is Helping Our Customers Adapt to New Hiring Laws
(11:36 - 16:18)
- Workstream is giving franchise owners, general managers, basically anyone who's in charge of the top, a way to have a line of sight into all the communication. In a recent interview with multi-unit franchise owner for Jamba, Pieology, and Carl's Jr, she was sharing how before Workstream, managers were using personal cell phones and there was no line of sight.
- With Workstream, district managers and owners now have oversight to the entire process, even down to seeing each message in the hiring process. You can see what your general managers are asking when they're doing two-way messages, emails, anything.
- You will also be able to automate the questions that are being asked and send out the screening quizzes.
- Workstream provides hiring managers with different stages where you have the applicant stage, the additional information is the form stage, video Q&A. You will be able to adopt screening questions templates used by companies like Chick-fil-A and Jamba. We also have a Customer Success team to help you set these up and make sure that you are on the right side of the law.
- Instead of general managers asking random questions, Workstream helps to collecting information that already includes the disclaimers and keep everything very much organized for you so that you can see all those applicants and their answers in one place to make sure they weren't ask any inappropriate questions.
- When an applicant applies for a job, Workstream automatically sends a text message that goes something like Hi, I'm Hope. Thanks for applying, when can you start? That's not a scheduling questions so that one is still okay. All these questions are fully customizable to your needs and preferences within Workstream.
- You can then proceed to ask a question like Have you ever worked at one of our stores before and then you can say again nice, could you write two sentences or upload a 30 second video about why you're interested in the role?
- The first three questions right there are all automated within Workstream. This looks as though a person is answering the applicant instantly, but actually, they were all automated behind the scenes by somebody at the owner level who had pre-set these questions.
- According to EEOC, you do not want to collect pictures ahead of time, or if you do anything like that, you have to say it's optional. Since we're in the world of video interviews, we're tying to make it easier for people to send a one-way video interview introducing themselves but we always have the option of doing that or providing two sentences saying what it is that interests you and then invite them for an interview.
- Up till now, all the hiring manager has to do is swipe and move somebody to the next stage where they are going to get an automated message that looks personalized with a link to the hiring manager's availability for an interview.
- This sends the availability of the person who's going to be interviewing them in person versus asking them for their availability to meet, which could potentially get into sticky issues with whether or not they're disclosing something that has to do with religion or other protected information.
(16:19 - 20:04)
1. What about age questions related to working with kids or liquor? I need a minimum of 18 years or 21 years of age.
- Yes, you can ask questions as long as they are related to your business and operations. So if you need somebody to be over the age of 18 because they're serving liquor or 21 in certain states, you can ask those questions. You're allowed to ask questions as long as they are necessary for what the person will be doing in your business and really with the age discrimination questions, they're more for protecting people 40 and over.
2. For recent grads, can we use this question if we are hiring for an internship?
- Yes for an internship, as long as you are doing it with college credit. Internship laws are really interesting state by state, many states now require that you pay interns and/or that they are getting college credits for this. I'm not quite sure what you mean by for a recent grad, but in general, what I would say just to do is to make sure to avoid asking for specific graduation dates, and instead you could ask somebody whether or not they are currently enrolled and would be able to get college credit for this.
3. When did the California privacy thing go into place?
- It went into effect on January 1st, but they're only starting to enforce it as of July 1st so that's why it's really just in the past month, or month and a half that we need to make sure everyone is complying with that.
4. Is it okay to limit internship job ads only for junior senior college statuses?
- That's a state by state question I believe. I'm pretty sure you're allowed to do that. Again, most of the age-related questions have to do with protecting people age 40 or over and so it's less so about protecting somebody around the ages of 18 years old from being discriminated against if there's a person who's 20. I believe you're fine but you may just want to search your specific state law because there are some funky state laws for that but generally I would assume you'd be okay, at least at the federal level.
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Lydia Fayal Hall is Head of Marketing at Workstream. She previously held leadership roles at OneSignal and Chalkup, acquired by Microsoft. Lydia has written for publications including The Wall Street Journal and Forbes. She is an alum of UPenn, Johns Hopkins, and YCombinator IK12. Originally from Stonington, CT, Lydia now resides in San Francisco, CA with her Australian Shepherd, Indy.