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Inquiry has some legal risks
Relatives in the area may boost retention.
A simple question for applicants—"Do you have family in the area?"—may boost retention, as applicants with family nearby are likely to stay with a job longer than workers without local family connections. However, lawyers differ over the degree of legal risk the question raises, with some saying the risk is minimal and others saying it's more pronounced. "My experience has been that our retention rate improves, and that employees are happier, if they have family members in the neighboring communities," according to Nancy McKeague, SHRM-SCP, senior vice president and chief of staff at Michigan Health & Hospital Association in Okemos, Mich. "First-year turnover has historically been a concern, so we started to look at our success stories and found there were two common denominators: the new hires either went to college here or, even more significantly, had family here," said McKeague, who is a member of the Society for Human Resource Management's Labor Relations Special Expertise Panel."This network of family members gives the new employee an immediate safety net while they begin to make new friends and build new relationships, right down to where they shop or bank, which school district or pediatrician they choose, or which religious institution they join," McKeague remarked. But is it lawful to ask directly whether an employee has family in the area?
Different Opinions on Legal Risks
"Asking an applicant about family in the area is not per se illegal," Stephanie Peet and Timothy McCarthy, attorneys with Jackson Lewis in Philadelphia, told SHRM Online via e-mail. "This can be a useful question for prospective employers, since an applicant's connection and ties to a particular area has been found to be a good indicator of likely employee retention. Workforce retention is a legitimate business goal, and businesses are free to pursue it."However, they cautioned that the question may elicit information that could open employers up to legal challenges. For example, an applicant may respond that he or she has a relative with a disability in the area. If that applicant is not selected for the job, he or she may claim that the company had knowledge of the relative's situation and chose not to hire the applicant for that reason, in violation of the Americans with Disabilities Act. In addition, many states include marital status as a protected class. "It is easily foreseeable that questions about the location of an applicant's family would reveal information bearing upon marital status," Peet and McCarthy said.The question also might elicit responses that reveal an applicant's national origin. Immigrants might follow up any initial response with information about what country they are from or where their relatives are living. "These risks, while somewhat distant, should be noted by employers," they said. Ryan Glasgow, an attorney with Hunton & Williams in Richmond, Va., said the legal risks of asking whether a job candidate has family in the area are "tangential at best." But he added that a poorly worded question could result in the candidate talking about immediate familial status—"a bad idea because it easily lends itself to sex discrimination allegations." And if the applicant responds that he or she is moving to town to care for a sick relative, the employer is on notice of the potential need for time off under the Family and Medical Leave Act, Glasgow noted.Another risk is that the workforce would become less diverse since hiring only those with connections to the local area could perpetuate the racial, ethnic and/or religious demographics of the area and the employer's workforce. On the other hand, the area might already be diverse.
Overall, though, "I think the risk is minimal and far outweighed by the employer's legitimate interest in ensuring that it does not hire someone who's less likely to stick around for the foreseeable future," Glasgow remarked. "Plus, there are plenty of things employers can do, and already ought to be doing, to increase the diversity of its applicant pools, such as publicizing job openings in diverse publications, maintaining a robust diversity committee, and generally ensuring that its employment process and policies are welcoming to individuals of all walks of life."Nonnie Shivers, an attorney with Ogletree Deakins in Phoenix, expressed a greater level of concern about this interviewing practice. "Asking about family to get at a geographic connection or commitment can certainly create legal risk," she said. Enhanced Equal Employment Opportunity Commission (EEOC) enforcement "has recently focused in on family responsibilities and family care discrimination, so opening the door to family-related information is a potential hazard, if not a big red flag, with current enforcement priorities."Shivers cautioned, "Keep your inquiries as closely job-related as possible."
Jay Hux, an attorney with Fisher Phillips in Chicago, said asking applicants whether they have family in the area is, legally speaking, a "gray area." "Title VII doesn't prohibit discrimination based on family status," he remarked, but if the question prompts a discussion of whether there is a spouse or children, the EEOC could have an issue with it.For those reluctant to ask applicants about family in the area, Hux suggested the following alternative questions:
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