Author: Wayne Barlow

Do you feel completely comfortable asking a candidate all the questions you need to ask? Do you know the areas that you should avoid? More importantly, are all the non-HR managers in your company who conduct interviews schooled on the issue? You need to be able to interview candidates without a cheat sheet—so it never hurts to refresh your memory.

Wayne E. Barlow, an attorney at the Los Angeles-based law firm of Barlow & Kobata, revisits some of the issues surrounding candidate interviews that you and your managers need to know.

How is an employer limited in the inquiries it may lawfully make of job applicants?
In general, it’s improper to make any inquiry about age, race, creed, color, national origin, gender, medical condition, marital status or disability. For example, in one case a court of appeals upheld a Title VII award in favor of a woman denied a job with a county veterans’ affairs agency following a job interview that focused upon her gender, including questions about her plans to have a family. Barbano v. Madison County, 922 F.2d 139 (2d Cir. 1990).

An interviewer should clearly not ask an applicant impermissible questions that relate to such areas, nor should the applicant’s prior employer be asked such questions during a reference check.

What are some of the specific prohibitions on what an employer may ask an applicant?
Federal and various state laws expressly prohibit—either verbally or through the use of an application form—any inquiry that isn’t job-related, which expresses, directly or indirectly, any limitation, specification or discrimination as to an individual’s protected status. State law may also limit specific inquiries. For example, under California law, inquiries about arrests or detentions that don’t result in convictions (other than an arrest for which the prospective employee is out on bail on his or her recognizance pending trial) are, with minor exceptions, prohibited, as are inquiries about convictions for certain marijuana-related offenses.

What sources are available for employer guidance?
Various federal and state agencies have developed guidelines that identify questions that may and questions that may not be asked of applicants. For example, the California State Department of Fair Employment and Housing (DFEH) and other agencies have developed guidelines that declare improper certain pre-employment inquiries.

The DFEH has found the following to be improper:

• Are you married?
• What church do you go to?
• Do you have any disabilities?

State and federal guidelines prohibit language in job announcements or job advertisements that smacks of discrimination—which means sexist job titles, such as “Girl Friday,” or references to “young,” “man,” “woman,” and “recent graduate,” are prohibited.

How may an employer minimize the risk of improper inquiries being made of applicants?
An employer can be found liable even if it does not “intend” to discriminate by the questions it asks. Thus, when preparing interview questions, employers should ask themselves whether there is any possibility the questions might be misconstrued or misinterpreted. Additionally, as a general rule, employers should ask the same questions of all applicants, regardless of the individual’s protected status.

Aside from specific statutory prohibitions, certain questions should not be asked because they elicit information employers may not consider in making an employment decision. Examples of such considerations include education, height, weight, physical condition, military discharge and credit standing. It may be difficult to convince a court the information afforded to the person making the hiring decision was not used in making that decision.

It is for these reasons human resources personnel interviewing applicants need to be carefully trained to avoid improper inquiries. The best approach is to carefully script the interview beforehand with a list of questions that will be asked during the interview process.

What are some of the limitations with respect to pre-employment testing of applicants?
There are many. For example, the Federal Employee Polygraph Protection Act of 1988 prohibits most employers from requiring, requesting, causing or suggesting an applicant submit to a lie detector test. The employer may not take any adverse employment action against a prospective employee because the candidate refuses to submit to a lie detector test or because the employer is aware of any prior test results.

Any exceptions to this rule?
There are exceptions. The federal government and certain federal contractors can require and administer lie detector tests to their job applicants. Federal and some state laws allow mandatory lie detector tests to applicants for certain state and federal law-enforcement positions.

What limitations apply with respect to physical and mental tests of applicants?
The Americans with Disabilities Act prohibits an employer from using any employment test or other selection procedure that screens out or intends to screen out physically or mentally disabled applicants unless the test is related to the position applied for and there is not an alternative job-related test available that will not tend to screen out as many disabled individuals. The test must be administered in such a way that it tests skills necessary for the job and not the disabling condition.

For example, on October 10, 1995, the Equal Employment Opportunity Commission (EEOC) issued revised guidance on the Americans With Disabilities Act (ADA) that allows employers more leeway in asking job applicants questions about reasonable accommodations. The enforcement guidance, issued in a question and answer format, replaces the more detailed and restrictive interim guidance issued in May 1994. The revised regulations let employers address steps necessary to reasonably accommodate an applicant during the initial interview stage. EEOC Guidance on Pre-Employment Inquiries under Americans With Disabilities Act, reprinted at BNA Daily Labor Report No. 196, E-4.

Personnel Journal, January 1996, Vol. 75. No. 1, pp. 99-100.

Within the last few years Congress has enacted a plethora of employment laws, each requiring careful review for their impact on the employment relationship. These laws regulate a host of issues, including: management-labor relations; benefits; wages, hours and terms and conditions of employment; leaves of absence; and the obligation to reasonably accommodate the disabled in the workplace. The list goes on and on.

Congress has, in most cases, instructed federal agencies to develop regulations regarding employee and employer rights and obligations under these new laws. Agencies then publish proposed and interim regulations, and it may take months—even years—for the regulations to become final.

Here, Wayne E. Barlow, a partner in the Los Angeles law firm of Barlow and Kobata, representing management in areas related to labor, personnel and employment, takes you through the process of developing interpretive regulations for a recently enacted law—from its assignment to a federal agency to where the agency publishes final regulations—and shows you how and why your company should be part of the process.

What first happens after Congress enacts a law and assigns a federal agency to create regulations?
Once Congress requires an agency to develop interpretive regulations, the federal Administrative Procedure Act (APA) provides that regulations are to be developed in accordance with a fact-finding technique known as notice and comment rulemaking.

The notice and comment sequence ensures that agency regulations will be subject to public comments. The process is intended to ensure that the public and persons regulated are given an opportunity to participate, provide information and suggest alternatives so the agency is educated about the impact of the proposed rule and can make a fully informed decision.

What steps must an agency follow in developing interpretive regulations?
First, a notice of the proposed rulemaking must be published in the Federal Register. The notice must include a statement of the time, place and notice of the public rulemaking proceedings, reference to the legal authority under which the rule is proposed, and either the terms or substance of the proposed rule or a description of the subject and issues involved.

After publishing the notice, the agency must give interested persons an opportunity to participate in the rulemaking through submission of written data or testimony at public hearings.

Following the period of public comment, the agency will then publish interim regulations. After publication of these regulations, the agency provides the public with another opportunity to comment before taking final action in the form of publication of the final rules.

Finally, the APA requires final regulations to be published in the Federal Register.

For what laws have federal agencies developed interpretative regulations that impact the employment relationship?
Within the recent past the following laws have been enacted: Worker Adjustment and Retraining Notification Act (WARN); Drug-Free Workplace Act of 1988; Employee Polygraph Protection Act of 1988; Americans with Disabilities Act (ADA); Family and Medical Leave Act of 1993 (FMLA); Civil Rights Act of 1991; and the Older Worker Benefit Protection Act amending the Age Discrimination in Employment Act.

In each of these laws, Congress has chosen a federal agency to develop regulations that explain and interpret the new law.

In addition to these laws, there are: the National Labor Relations Act and the Taft-Hartley Act (interpreted by the National Labor Relations Board); the Fair Labor Standards Act (interpreted by regulations developed by the U.S. Department of Labor); and the Occupational Safety and Health Act.

Are there examples of how the regulatory process works?
Take the FMLA. In the case of the Family and Medical Leave Act, Congress directed the U.S. Department of Labor to develop regulations that state employer obligations and rights. The FMLA requires employers with 50 or more employees to provide up to 12 weeks unpaid, job-guaranteed leave in a 12-month period for childbirth, adoption, and serious personal illness of employees or close family members.

The FMLA was enacted on February 5, 1993. Portions of the law applicable to non-union employees became effective on August 5, 1993, and the FMLA required the Department of Labor to issue regulations to implement the law by June 5, 1993.

To obtain public input and assist in the development of the regulations concerning FMLA, the Department of Labor published a notice of proposed rulemaking in the Federal Register on March 10, 1993, inviting comments until March 31, 1994, on a variety of questions and issues.

The Department of Labor issued an interim final rule on June 4, 1993, which went into effect on August 5, 1993. Further public comment on the interim rules was invited until December 3, 1993.

However, final regulations were not published until this year when on January 6, 1995, the Department of Labor published its final rule in the Federal Register. The total elapsed time was 18 months.

Is it important that the employer community monitor this process?
Regulations provide the details regarding laws passed by Congress and are intended to guide the public, including the employer community, to their rights and obligations. Particularly for larger organizations with sufficient resources, the employer community has every incentive to carefully monitor the development of agency regulations that will control the way it does business.

The discussion above shows, with respect to the Department of Labor’s publication of final rules regarding the FMLA, that the regulatory process is not only time consuming and protracted, but the agency authorized to develop the regulations often does not publish final regulations until well after the law itself has become effective. From the date the FMLA became effective on January 6, 1995, covered employers were required to comply with the FMLA, and incur potential liability for erroneous decisions in granting employee leaves, even if they were made in good faith.

Given this delay, it is critical that employers remain current on developments involving the regulatory process.

Must employers comply with proposed and interim federal agency regulations?
Generally, yes. The validity of a proposed rule, interim rule or final rule depends on whether the agency is empowered to adopt the rule and whether the rule is consistent with the statute passed by Congress. Absent a specific basis to believe the regulations are invalid, employers should comply with the regulations.

Employers may generally rely upon and act consistent with proposed and interim regulations. However, if the proposed regulation conflicts with case law interpretation of the statute, little weight would be extended to the regulation.

Before being declared void, a court must find the regulation to be inconsistent with the law passed by Congress. A court construing an Act of Congress will give substantial deference to the agency’s interpretation of the law so long as it is reasonable and not in conflict with the statute.

Most important for employers, for enforcement purposes, the agency charged with ensuring compliance will rely upon any proposed regulations.

May an employer submit comments or suggestions to a federal agency developing regulations and, if so, how?
The rulemaking process is an invaluable opportunity for the employer community and permits an organization to submit comment on proposals being considered.

Referring to the employer community’s experience with the FMLA, the Department of Labor received a total of 393 comments in response to that agency’s notice of proposed rulemaking. The agency received 900 comments on the interim final rules from such diverse groups as employers, law firms, management consultants, temporary help and employee leasing companies, professional and trade associations, universities and individuals. Comments were also received from advocacy groups, unions, family counselors and therapists and clinical social workers.

Important issues regarding employer obligations were determined in the rulemaking process. The final rule, for example, broadened an earlier definition of an employee’s serious health condition for which family leave must be granted. The law itself defined a serious health condition as an illness, injury, impairment, or physical or mental condition that involves certain hospital or similar treatment by healthcare providers. In interim proposed rules, the Department of Labor described a serious health condition as a period of incapacity of more than three days, and defined continuing care as involving one visit to a health-care provider that results in a regimen of continued care under the provider’s supervision. In the final rule, serious health condition was broadened to cover both short- and long-term conditions for which treatment and recovery are lengthy, such as for chronic conditions such as asthma and diabetes. The Department of Labor determined to stick to the “more than three days” policy, reasoning that the law was intended to provide that conditions lasting only a few days were not intended to be included as serious health conditions because such conditions are normally covered by employers’ sick-leave plans.

However, as a result of the rulemaking process, the final regulation gave special consideration to chronic conditions which continue over an extended period yet often cause periods of incapacity of less than three days. The final rule covers such conditions.

Does the term “legislative history” include the rulemaking process and does it provide guidance useful to employers?
No, legislative history refers to the debate in Congress leading to enactment of legislation. Such history includes committee reports, floor dates in the House and Senate and messages to the President.

However, in developing interpretative rules, agencies often look to such legislative history to determine what is meant by key terms found in law. Such history is useful to the employer community only if an employer believes that specific provisions of a law are not explained by the law itself or an agency’s interpretive regulations of the law.

How can I locate proposed and final federal agency regulations?
Proposed and final regulations can be found in the Federal Register. It is suggested that a company’s HR or legal department monitor regulatory developments contained in the Register for their impact on day-to-day personnel decisions and policies.

Personnel Journal, February 1995, Vol. 74, No. 2, pp. 100-102.

The Family and Medical Leave Act (FMLA) requires covered employers to grant full-time employees a maximum of 12 weeks of unpaid, job-protected leave during a 12-month period for the following reasons:

• To care for a newborn child, a newly adopted child or a child placed with an employee for foster care
• To care for a child, parent or spouse who has a serious health condition
• For an employee’s own serious health condition.

The act, which went into effect on August 5, 1993, applies to any employer engaged in commerce who employs 50 or more employees. Special rules apply to employers who have collective-bargaining agreements.

Before the FMLA, 34 states and some local governments enacted family-and medical-leave legislation. The state and local laws often are applicable to the same employers who are subject to the FMLA. The U.S. Department of Labor’s (DOL) interim final FMLA regulations, issued June 3, 1993, make clear that an employer must comply not only with the FMLA, but also with state and local laws regarding family and medical leave, as well as state and local laws that prohibit discrimination in employment.

Because employer rights and obligations provided by state and local laws vary significantly from each other and from the rights and obligations of the FMLA, they subject employers to a complexity of rules that often appear inconsistent. Although the DOL’s regulations address the interplay between FMLA and state and local statutes to some degree, they don’t provide a definitive resolution for coordinating leave policies. Nor do the DOL’s regulations fully explain the impact on leave decisions of federal, state and local laws that prohibit discrimination in employment on the basis of race, religion, color, national origin, gender, age or disability.

The issues that arise in coordinating FMLA compliance with that of local and state laws stem from the clause in the act that states: “[n]othing in this Act…shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability…”; and “[n]othing in this Act…shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act.”

To make matters worse, no single agency empowered to interpret or enforce a particular statute can give an employer conclusive guidance in complying with other statutes. Federal, state and local laws that impact leave policies are enforced by multiple agencies. For example, the U.S. Department of Labor enforces FMLA. The Equal Employment Opportunity Commission (EEOC) enforces and interprets the Americans with Disabilities Act.

What should employers do?
To comply with the multitude of federal, state and local legislation employers should:

1. Identify all sources of legislation that govern its leave decisions.
2. Identify the differences between all applicable family-leave statutes. Key areas of contrast between the FMLA and state and local laws to be reviewed are:

• Their effective dates
• The purpose for which leave must be granted
• The length of leave that an employer must provide when a state statute provides for a longer duration than the FMLA
• Salary-and benefit-continuation requirements
• Job-restoration rights
• Medical verification.

Once the differences between the FMLA and an applicable state or local law are identified, an employer must then determine whether the state law provides a more favorable leave benefit for the employees than the benefit found in the FMLA. If so, an employer must blend the state requirements with those of the FMLA and comply with whichever grants the more favorable leave benefits to employees.

Some suggestions for blending the leave requirements are:

1. Reasons for leave.
   The regulations make clear that an employee eligible for leave under only one law (FMLA or state) is entitled to benefits in accordance with that particular statute. Different rules may apply if a state or local statute permits leave for reasons permitted but not covered by the FMLA. For example, if a state law provides leave to care for a seriously ill grandparent or a spouse equivalent, neither of which are covered by the FMLA, an employee who takes leave for this purpose remains entitled to all leave permitted by the FMLA. However, if leave covered by the FMLA is used first for a purpose for which state law also provides, and state leave has been exhausted, the employer isn’t required by the FMLA to provide additional leave to care for the grandparent or spouse equivalent.
2. Duration of leave.
   The FMLA entitles employees to as many as 12 weeks of leave during any 12-month period. Leave may be taken intermittently or on a reduced-leave schedule. Leave to care for a newborn or newly adopted child may be taken if the employer and employee agree to the arrangement. Employees may take medical leave intermittently or on a reduced-leave schedule when medically necessary without permission from the employer. The regulations provide that if an employee qualifies for leave under the FMLA, as well as leave under state law, the leave used counts against the employee’s entitlement under both laws.

The following examples from the regulations illustrate the interaction between the FMLA and state and local laws in regard to the duration of leave:

• If a state statute provides 16 weeks of leave entitlement during a two-year period, an employee would be entitled to take 16 weeks one year under state law and 12 weeks the next year under the FMLA. However, health-benefits maintenance under the FMLA is applicable only to the first 12 weeks of entitlement each year. If the employee took 12 weeks the first year, the employee would be entitled to a maximum of 12 weeks the second ear, but not for 16 weeks
• An employee wouldn’t be entitled to 28 weeks in one year
• If a state law provides six weeks of half-pay for maternity leave, the employee on leave would be entitled to an additional six weeks of unpaid FMLA leave (or accrued paid leave).

3. Notice of leave.
   The FMLA and state statutes require employees to give their employers varying periods of notice. Under the FMLA regulations, a “shorter notice period under State law must be allowed by the employer unless an employer has already provided, or the employee is requesting, more leave than required under State law.”
4. Medical certification.
   Under the FMLA, an employer may require that an employee provide certification of his or her serious health condition, or that of a family member, in a “timely manner.”

Medical certification may include:

• The date on which the serious health condition began and its probable duration
• Appropriate medical facts
• A statement that the employee is needed to care for the spouse, parent, or child or that the employee is unable to perform his or her job functions
• The dates and duration of treatment to be given in the case of intermittent leave.

The FMLA’s regulations state that, “[i]f state law provides for only one medical certification, no additional certification may be required by the employer unless the employer has already provided, or the employee is requesting, more leave than required under State law.”

5. Benefit and salary continuation.
   The FMLA entitles employees on leave to receive the same health-benefit coverage as when working. In addition, leave may not result in the loss of any previously accrued seniority or employment benefits. Employers aren’t required to continue the accrual of benefits during the leave.

The FMLA regulations likewise make clear that FMLA rights may not be reduced by an employment-benefit program, plan or collective-bargaining agreement (CBA). For example, the FMLA supersedes provisions of a CBA that provide for reinstatement to a position that isn’t equivalent.




Family leave is unpaid under the FMLA. However, the national act provides that the employee may elect, or an employer may require, the employee to substitute any of the employee’s paid vacation leave, personal leave or paid family leave for any part of the 12-week period of leave.



6. Job-restoration rights.
   Under the FMLA, an employee who completes a leave must be returned either to the same position as before, or to a position equivalent in pay, benefits and other terms and conditions of employment. The act provides a limited exemption from the restoration requirement for certain highly paid employees.
7. The effective date of the FMLA for companies with collective bargaining agreements.
   For companies that had CBAs in effect on August 5, 1993, the FMLA becomes effective for the company on February 5, 1994, or the date that the CBA terminates, whichever date is earlier.

Take federal and state discrimination laws into account.
Employer obligations neither begin nor end with family-leave-legislation compliance. Adding to the complexity are additional federal, state and local laws regarding discrimination-among them the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA).

The PDA requires that employers provide leave to employees who are temporarily and medically disabled, because of pregnancy, childbirth or related conditions, in a like manner to that provided to employees who are disabled for other nonwork-related conditions or injuries. ADA prohibits both public-and private-sector employers from discrimination against persons with disabilities. It also requires that employers reasonably accommodate employees and applicants with disabilities, so long as such accommodation doesn’t result in undue hardship to the employer. Accommodation includes job restructuring, and permitting part-time or modified work schedules.

An employer may be confronted with a family-leave request by an individual considered disabled under the ADA or a comparable state statute. The regulations make clear that the employer must afford an employee his or her rights provided by the FMLA, and reasonable accommodation as required by the ADA.

The following examples contained in the FMLA’s regulations illustrate potential areas of employer concern:

1. A reasonable accommodation under the ADA may be accomplished by “providing the employee with a part-time job with no health benefits.” The FMLA permits an employee to work a reduced-leave schedule during his or her 12 weeks of leave, and requires the employer to maintain health benefits during this period at its cost. At the end of the leave entitlement, the employer would then be required to reinstate the employee to the same job or to an equivalent position.
   
   However, if the employee were unable to perform the equivalent position because of a disability, and the employee ex-hausted family-leave entitlements, the ADA “may permit or require the employer to make a reasonable accommodation at that time by placing the employee in a part-time job, with only those benefits provided to part-time employees.”
2. Although family-leave statutes may entitle an employee to take leave, the regulations make clear that an employer may not, in lieu of family leave, “require an employee to take a job with a reasonable accommodation. However, the ADA may require that an employer offer an employee the opportunity to take such a position.”
3. If an employer requires a health-provider’s certification that an employee is fit to return to work as permitted by the FMLA, then the employer “must comply with the ADA requirement that a fitness-for-duty physical be job-related.”

This analysis requires careful comparison of the multitude of provisions found in the FMLA and state and local laws. Potential back-pay liability, attorneys’ fees and costs associated with management time being diverted to respond to administrative charges and litigation, may result if an employer fails to consider or incorrectly discharges all sources of its family-and medical-leave obligations.

Personnel Journal, September 1993, Vol. 72, No. 9, pp. 52-53.