HR Solutions

By Oct 1, 2003
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HR Magazine, October 2003 Be careful when using information about age

Q: We conduct criminal background checks and our vendor requires us to collect the date of birth on the background check authorization form. Is it illegal for us to ask for an applicant’s or employee’s date of birth?

A: There is no law that prohibits an employer from asking date of birth (DOB). It’s how the employer uses that information that is important. Of course, the Age Discrimination in Employment Actprotects workers by prohibiting discrimination against workers age 40 and over in any employment or employment-related decision. Therefore, the employer will want to take care not to use or appear to be using the DOB in making employment or employment-related decisions.

Your background check vendor will probably confirm that the DOB is required to facilitate the most effective background check. Please consider these ideas for reducing the employer’s exposure in requesting the DOB for the purpose of running background checks:

  • The background check authorization form and request for DOB should be separate from the employment application, and the response to that request should never be forwarded with the application/resume to the hiring managers or anyone else who does not need to know the applicant’s DOB.

  • The employer should limit its request for the DOB to the background check authorization form. The employer may consider using the vendor’s background check authorization form with the vendor’s logo and company name rather than having the employer’s name or logo on the form.

  • Ask the vendor if an equally effective background check could be performed by having just the month and day of birth.

  • The applicant’s DOB should be shared on a strict need-to-know basis only (i.e., the background check vendor or employer representative conducting the background check).

  • Ask the vendor if it can provide the service of collecting the DOB for the employer, such as through a toll-free telephone or fax number.

  • The employer could provide the applicant with a stamped envelope addressed to the background check vendor for the worker to return the authorization form.

In addition, the employer may like to include a statement similar to the following with its request for the DOB:

“Applicants are considered and employees are treated during employment without regard to age, race, color, religion, sex, national origin, marital or veteran status, medical condition, or disability. Date of birth is required from all applicants and employees to facilitate a background check.”

Anne St. Martin, SPHR, CEBS, is senior information specialist with SHRM’s Information Center.

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. 

FMLA, state laws rather than ADA address most maternity leave issues

Q: An employee hired two months ago has been absent frequently. She just informed us that she is three months pregnant, is often too sick to work due to her pregnancy, has been told by her doctor that she can work only part-time for the next several months, and might be on bed rest the last two months of her pregnancy. We need to have her job performed on a full-time basis without excessive absences. We have no policy or practice on this. Is pregnancy covered under the Americans with Disabilities Act (ADA)? What other laws do we need to consider regarding termination of this employee?

A: Regarding coverage under ADA, although other statutes may use the term “disability” when referring to pregnancy, pregnancyEnd hit highlight is not a “disability” for purposes of the ADA. To be considered a disability under the ADA, covered persons must actually have physical or mental impairments that substantially limit one or more major life activities. Because pregnancyBegin hit highlightEnd hit highlight is not the result of a physiological disorder, it is not considered an impairment under the law. However, complications resulting from pregnancy may be impairments that the employer will need to consider on a case-by-case basis.

Other laws that cover absences related to pregnancy are federal and state family and medical leave laws. The federal law, the Family and Medical Leave Act, covers employees who have worked at least 12 months and have worked 1,250 hours in the previous 12 months. It appears this employee is ineligible for the federal benefit because she was hired only two months ago. However, your state law on family and medical leave still needs to be reviewed as some states have eligibility requirements that note fewer than 12 months of employment. The company would comply with the law that is most generous to the employee.

The other law that must be considered is the Pregnancy Discrimination Act (PDA). PDA was passed in 1978 as an amendment to Title VII of the Civil Rights Act. The Act prohibits pregnancy-related discrimination. It requires that employers treat pregnant employees in the same manner as male and non-pregnant female employees in determining their ability to work. Review how the company has handled similar absences and treat this employee in a similar manner. In addition, the company may want to develop a formal maternity leave policy that reflects the federal and state eligibility requirements.

As with any termination that may involve the interplay of federal as well as state laws, the company should seek advice from its legal counsel before taking any action.

Diane Lacy, SPHR, is an information specialist with SHRM’s Information Center.

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice.

Under FLSA, advantage goes to nonexempt workers receiving a salary

Q: What does it mean to have a “salaried, non-exempt” employee?

A: All employees are considered nonexempt and subject to the Fair Labor Standards Act (FLSA) unless they are shown to be exempt from the FLSA’s overtime and minimum wage requirements by meeting both a duties test and a salary test.

An employee who “receive[s] his full salary for any week in which he performs any work without regard to the number of days or hours worked …” is considered paid on a salary basis, according to U.S. Department of Labor regulations.

An employee who does not meet the duties test can be paid on a salary basis but still remains subject to FLSA requirements, or “salaried, non-exempt.”

While there are cases where the employer may opt to pay a non-exempt employee on the salary basis instead of an hourly wage, such an arrangement typically is advantageous only for the employee. The reason it is advantageous for the employee is two-fold. First, non-exempt employees who work more than 40 hours in a week must be paid overtime, regardless of how they are paid. But when a salaried, non-exempt employee works fewer than the required full-time hours, that employee still receives his salary. (No penalties are assessed for any hours not worked because he is paid on the salary basis).

But paying non-exempt staff on a salary basis is actually convenient, even efficient for some employers, particularly smaller employers who do not outsource the payroll function. For them, it is administratively simpler than having to track and record all hours worked in a week and adjusting payroll accordingly each pay period. These employers usually open and close their operations at specific times, so the chance of incurring overtime is unlikely.

For more information on the salary and duties tests see the SHRM Legal Report article entitled Overtime Exemptions for White-Collar Employees: New Regulations Clarify Status.

Ruhal Dooley, SPHR, is an information specialist with SHRM’s Information Center.

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice.

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