Interview Questions
Employee Performance Evaluation
Family Medical Leave Act - FMLA
Harassment
Employee Counseling & Termination

Interview Questions

Am I limited in the types of questions that I can ask during an interview?

Yes. Federal law does not prohibit an employer from asking any question, but there can be serious consequences if such questions lead to discrimination in hiring. Some states are more stringent than the federal government and will prohibit an employer from asking certain types of questions.

The basic rule is that any question may be asked so long as it is necessary or closely related to the job that the applicant is seeking. In the case of a complaint, the employer must be able to demonstrate that their intent in asking a particular question was to determine whether the applicant met a legitimate qualification for the job.

What questions should I avoid?

Some topics and associated questions that are illegal include:

• Race. "What race do you belong to?" "You look 'mixed' - was your mother of a different race than your father?"
  
  
• Religion. "What church do you go to?" "Does this mean you won't work on weekends?" "Do you have to wear that head covering?"
  
• National origin or ethnicity. "Were you born here?" "Sanchez, is that a Mexican name?" "Where are your parents from?"
  
• Political affiliation or philosophy. "Which candidate do you like?" "What political parties do you belong to?" "Are you for or against the death penalty?"
  
• Marital status. "Are you married?" "Are you planning to have [any/any more] kids?" "Does your husband work?"
  
• Handicaps or illnesses. "Do you smoke?" "How often do you call in sick?" "How did you lose use of your legs?" "How much do you weigh?" "Are you HIV positive?"
  
• Age. "How old are you?" "Don't you think you are too old to do this kind of work?"
  
• Sexual orientation. "Are you gay?" "Do you live with someone of the same sex?" "Have you been tested for AIDS?"
  
• Personal financial status. "Do you own your own home?" "Have you ever filed for bankruptcy?"

 

How can I get the information I need?

If your purpose for asking a question is to obtain some information that may legitimately affect the qualifications of the person for the job, consider different ways of asking for the same information. As an example, if fluency in English or a strong command of the English language is needed to perform the job, an employer is safe to ask the applicant in what languages they can demonstrate fluency, but should not ask whether English is their "native" or "mother" tongue. Or if the applicant may need to work weekends, rather than asking whether their religion would "forbid" it, simply ask whether they are available to work overtime or during weekends.

Employee Performance Evaluation

How do we ensure that a fair and accurate performance evaluation is provided to an employee?

One of the most common obstacles to conducting an effective and productive evaluation of an employee's performance occurs when the employer's expectations have not been clearly communicated to the employee prior to any evaluation. An employer's best preparation is to ensure that the employee's job description definitively outlines the responsibilities and tasks assigned to the employee. Wherever possible, the employer should try to provide objective performance measurements.

What does a manager need to do to prepare a performance evaluation?

Before an evaluation may proceed, the manager should make sure that all of the facts are at hand. This means that the person conducting the evaluation needs to prepare themselves by reviewing all pertinent records and documentation, speaking with necessary personnel, and understanding how the employee rates against his or her peers who are performing the same job or task, if applicable.

How often should I conduct a performance evaluation?

While there is no definitive period that a performance evaluation should cover, care must be taken to ensure that the time selected strikes a balance between two objectives: protecting the company and allowing the employee adequate time to perform his or her duties. Certainly, performance evaluations should not be conducted so infrequently that problems go undetected and worse, uncorrected, such that productivity suffers. However, the nature of an employee's job should be used to govern how often the evaluation is prepared so that the employee can meet the stated goals and objectives of their employment within that time frame. This latter point is especially important if the employee has been given feedback to improve his or her performance - it is only fair to make sure that they have the chance to do so!

Family Medical Leave Act - FMLA

What is the Family Medical Leave Act?

The Family Medical Leave Act (FMLA) is a federal law that was designed to ensure that employees could receive leave from work for eligible medical reasons, such as maternity leave. While such leave may be unpaid, the employer must guarantee that the employee can return to the same position they held before the leave or an equivalent position.

Does the FMLA apply to my business?

All private businesses with at least 50 employees each working day, during at least 20 calendar weeks during the current or preceding year, must comply with the FMLA. All public agencies, including local school boards, must comply with the FMLA even if they have less than 50 employees.

How much leave time can the employee receive?

The FMLA provides 12 weeks of unpaid leave within a 12-month period for eligible employees. Under certain circumstances, that leave time may be taken intermittently. For intermittent leave, the employer's approval is usually needed.

When is an employee eligible for leave time under the FMLA?

To be eligible for FMLA leave, an employee must:

• Be employed by an employer to whom the FMLA applies.
  
• Be working at a site where there are at least 50 employees working within a 75-mile radius.
  
• Have been employed for at least 12 months by the employer, although that does not need to be a consecutive 12-month period.
  
• Have worked for at least 1,250 hours for the employer in the preceding 12 months before the date when the FMLA leave is to start.
  

What qualifies as a serious health condition?

The FMLA defines a serious health condition to be "an illness, injury, impairment, or physical or mental condition" that requires either inpatient care at a medical facility (including a hospice or nursing home) or continuing treatment by a health care provider. If the employee is claiming that they are suffering from a serious health condition, the condition must be one that makes the employee incapable of performing the functions and tasks of their position in the business, whether in a continual state or for occasional periods of time.

Do I need to pay my employee while they are on FMLA leave?

No. FMLA leave may be unpaid. Furthermore, in certain cases an employer may request that an employee uses his or her accrued paid time (vacation time, sick days, etc.) for periods of FMLA leave. In addition, an employee is not entitled to accrue benefits (e.g. vacation time, sick days, paid time off) during his FMLA leave.

Do I need to continue my employee's health coverage while they are on FMLA leave?

Yes. While the employee's FMLA leave can be unpaid, the employer must still provide the same health benefits as were provided before the employee took leave.

If my employee cannot return to the same position they held before, what is an equivalent position?

An equivalent position is one that has the same pay, benefits, and status as the one held by the employee before their FMLA leave.

Does the FMLA supercede any regulation by my State?

No. A State may have its own family leave laws, but cannot offer any less benefits than does the federal FMLA. In fact, a State may offer more benefits than the federal government and the employer must comply with whatever the State has set for its minimum requirements - an employer cannot "choose" the FMLA standard over the State standard if it is more favorable to the employer.

In California, employers are governed by the California Family Rights Act (CFRA) of 1993.

Harassment

What is harassment?

Workplace harassment is any unwelcome or unwanted conduct based on an individual's race, sex, ethnic or national origin, age, religion, disability, or other personal characteristic protected by law. A conduct is unwelcome if the employee did not solicit, instigate or provoke it, and the employee regarded the conduct as undesirable or offensive.

Sexual harassment is a form of sex discrimination that involves unwanted or unwelcome conduct of a sexual nature. This applies to harassment by a person against another person of the opposite sex as well as harassment by a person against another person of the same sex.

What is the obligation of the employer in preventing harassment in the workplace?

The employer must develop and distribute a policy that clearly explains that harassment in the workplace is unacceptable behavior that will not be tolerated. The policy should describe the types of prohibited behavior. The employer must train its managers and supervisors about the policy, their responsibilities in enforcing it, and how to handle a reported problem of harassment. The employer must also educate its employees as to the kind of behavior that is to be avoided. The employer should tell employees that it is against company policy and against the law to harass another person in the workplace. Finally, the employer must have an effective mechanism to prevent and promptly correct any sexual or other harassing behavior.

What must the employer do when there is a harassment problem in the workplace?

The employer must conduct an immediate and thorough investigation, followed by an appropriate remedy to correct the problem. The employer's response must be reasonably calculated to end the harassment and prevent it from happening again.

What are some examples of workplace harassment?

• Verbal - Sexual innuendoes and other suggestive comments; racial or ethnic slurs; humor, jokes, or teasing about sex, race, age, religion, disability, or gender-specific traits; repeated requests for dates; sexual advances or propositions; comments about a person's body or attire; excessive flattery or questioning of a personal nature; abusive language or insults; threats.
  
• Visual or Nonverbal - Leering or staring in a sexual manner; whistling or hooting; suggestive or insulting looks; vulgar sounds or gestures; offensive or hateful pictures, posters, calendars, cartoons, or obscene e-mail; excessive attention in the form of love letters or gifts; offensive or derogatory written materials.
  
• Physical - Inappropriate touching of the body (e.g., brushing, patting, hugging, pinching, or shoulder rubs); kissing or inappropriate display of body parts; coerced acts of a sexual nature; assault; exclusionary or demeaning actions or activities based on age, ethnicity, sex, or race.

Employee Counseling & Termination

Can I fire my employee?

Most employees are hire "at will," meaning that there is no formal contract governing the terms of their employment. However, an employer should not assume that they can fire someone "at will" without demonstrating good cause. There are numerous federal and state laws that limit an employer's options. Examples of such limitations include:

• Under the Employee Retirement Income Security Act, an employer may not terminate an employee to keep the employee from vesting in or qualifying for benefits under a pension plan.
  
• The Americans with Disabilities Act prevents an employer from firing an employee who has become disabled. Disabilities included under the Act may include those that require extensive leaves of absence as well as those that are alcohol or drug related.
  
• State laws, such as those in California, prohibit an employer from firing an employee for serving on jury duty, filing a workers compensation claim, or for refusing to take a polygraph test.
  

This is not to say that an employer is "stuck" with a problem employee - such an employee may still be terminated on the basis of poor performance, insubordination, or any kind of misconduct. However, the employer should protect himself by following some guidelines.

Taking the Right Steps

An employer should have a procedure in place to investigate reported problems and ensure that the employee receives fair and timely feedback.

The company should ensure that there are clear and well-defined written policies about the types of behavior that will not be tolerated and that these policies are communicated to employees. Additionally, these policies should be published in an employee handbook, and communicated not simply once, but periodically to employees through training and interoffice communications.

The employer must include in these policies the proper procedure to be followed when conducting an investigation of possible employee misconduct. The key rule to remember is that such procedures should be fair - this means that an employer should not rely on the report of one supervisor but solicit as much information about any incident, including that from the employee himself.

Once an investigation is started, an employer must be sure to document the results. Care must be taken to ensure employee confidentiality, where necessary, as well as avoid information that is inflammatory. Remember, if a terminated employee files a lawsuit against the company, such documentation must be produced in court.

Most importantly, the employee at the center of any controversy must be given feedback and be made aware of any possible consequences. No termination should come as a surprise to any employee - nor should any employee be denied the chance to present a defense.

Terminating an employee

Unfortunately, there are relationships that may come to an unhappy ending, and that between employer and employee is no exception. After all the proper steps are taken to ensure that termination is warranted, an employer should still be sure to maintain a professional, yet effective means of severing a relationship with an employee.

An employer should draft a termination procedure that allows as much as possible for a mutually satisfactory parting. While it is recognized that there may be circumstances that warrant immediate action, an employer should refrain from firing an employee "on the spot" and instead provide a non-confrontational atmosphere under which the employee can leave the premises. The notification with the employee should include the following:

• Clear and definite explanations to the employee on why he or she is being fired. This does not have to be a "blow by blow" report to the employee of any wrongdoing, but a simple summary of the reasons and the steps that were taken to come to this resolution.
  
• A detailed list of what the employee should expect to happen after this notification. This list should include the effective date of termination; items that the employee should prepare to hand over to a supervisor (computer passwords, ID badges, company credit cards, keys, etc.); and how the final accounting for compensation will be done, to include, as applicable, severance pay, payment of vacation time, etc. If the employee must leave immediately, have checks ready to hand over to the employee.
  
• Remind the employee of any policies that might effect them, such as those involving trade secrets, confidential company data, or other information to which the employee might have been privy.
  
• Allow the employee to ask any questions and solicit feedback on how policies and procedures might be changed to handle things more easily. Do not dismiss the opinion offered - although the termination may be unhappy, an employer should not assume that anything said by the employee may be colored by anger or resentment.