Hiring and the Law —
Should I Require a High School Diploma?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: Is there any problem requiring a high school diploma as a basic requirement for all jobs in my company?

Answer: This is another situation where the answer is a very lawyerly—maybe. If an employer imposes a job requirement that is not actually required for the job, that requirement could be challenged as discriminatory on a number of fronts. There’s a famous employment law case decided by the U.S. Supreme Court that determined that a power company requiring a high school diploma for higher paying jobs had an adverse impact on African-American employees who, at that time, were less likely to have high school diplomas than White employees. Thus, any African-American applicant was shunted into low paying jobs, without an opportunity for advancement due to the high school diploma requirement. In that case, the company could not demonstrate that there was any actual relationship between the diploma and the ability to do the job. Thus, the requirement was found to be discriminatory and in violation of the law.

Any requirement imposed by an employer needs to actually be job related. If challenged, the company will need to demonstrate a business reason for the selection criteria. There may be situations where a high school diploma can be justified as a job requirement. On the other hand, in other situations, such justification may not exist.

Recently, the Equal Employment Opportunity Commission (EEOC) (the federal agency that handles employment discrimination complaints) determined that a high school diploma requirement also could violate the Americans with Disabilities Act (the “ADA”), because that requirement could screen out certain people with learning disabilities who were unable to earn a high school diploma. Unless the employer could demonstrate that the high school diploma requirement was truly related to the ability to perform the job, that requirement could be found to be discriminatory.

That does not mean that an employer has to hire an applicant with a learning disability. Rather, all applicants with the basic requirements should be considered—and the same requirements can apply to applicants with learning or other disabilities. If an applicant is disabled, companies are legally required to consider whether the person can perform the job “with or without reasonable accommodations.” A reasonable accommodation is something reasonable that the employer can provide to assist a disabled employee to perform his or her job. However, such accommodations need not be provided if they cause an undue hardship on the company. Thus, even though companies are not required to hire disabled applicants, and can apply the same job-related application standards, companies cannot create artificial barriers (like a high school diploma in this case) that tends to screen out potentially qualified applicants with disabilities.

Often employers use a high school diploma requirement as a substitute for other factors – the ability to see a project through to completion; a level of maturity; ability to follow directions and comply with requirements, etc. However, people could graduate high school and not have any one of these characteristics. Conversely, people could have dropped out of high school for one reason or another, yet be able to demonstrate each and every one.

Employers would be prudent to identify the actual requirements and expectations of the successful candidate for a job, and then set their hiring criteria around those requirements that can be shown to be needed to perform the job.

Again, to answer your question—maybe. However, it is very unlikely that a business will be able to justify a high school diploma requirement for every single position.


*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.



To see how our employee test can help you bring better people on board watch this three minute video.



If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.


Hiring and the Law —
Can I Disqualify the “Unemployed”?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I need to hire a technician for my company. I know there a lot of people out of work, but I’m looking for someone who is currently employed. I think they are more likely to be up-to-date on the most current technology in our field. Is there any problem with saying in the want ad “Unemployed need not apply”?

Answer: There was a time where that would probably not be a problem. However, lately, there has been concern about discriminating against the unemployed even though no state or federal law currently identifies “the unemployed” as a protected category. These categories are the familiar characteristics that usually cannot be considered when selecting a candidate for a job such as a person’s race, age, national origin, gender, religion, disability etc. Nevertheless, there could potentially be a problem for the company if you indicate in a want ad that the unemployed are not welcome to apply.

The federal Equal Employment Opportunity Commission (“EEOC”) held hearings this year on the growing practice of excluding the unemployed from applying for jobs. According to the EEOC, extended periods of unemployment disproportionately impact older workers, women and African Americans. For this reason, the EEOC has been considering that discrimination against the unemployed is a round-about way to discriminate against these categories, which are protected from discrimination under the law.

The way to avoid this, and any other type of discrimination, is to make sure that the company’s criteria for the job, and factors utilized in the hiring decision making process, are job related and satisfy a business necessity. For example, having your applicants up to date on the most current technology in your field is certainly a valid non-discriminatory selection criteria. Rather than presuming that someone who is employed has kept him or herself up to date, and someone who has not been working has not, use the interview process to determine whether the applicant in front of you is current in his or her technology. For example, perhaps the unemployed applicant has gone back to school to take classes in the latest methodology, where a currently employed person, maybe working on older equipment, has not had the opportunity to do so. Any time you use a person’s characteristic as a proxy (substitute) for the business skill or qualification you are looking for, the company can run into trouble.

Presuming that someone who is unemployed has not kept up to date on the technology in the field, without finding out whether this is actually true, is the same thing as using any other discriminatory stereotype. For example, presuming that people of certain ethnicities are lazy or that others are dishonest without interviewing an applicant who has the basic qualifications for the job is improperly utilizing a stereotype to take the place of your application process. Presuming a person is a certain way because of a protected characteristic is the essence of discrimination. Those generalizations have no place in the job selection process.

For these reasons, even though being “unemployed” is not exactly a protected category, making hiring decisions based on this factor can cause trouble for businesses, and likely should not be included in your job posting. The key to a successful applicant selection process is to use the job application, the job interview, and pre-job testing to learn as much as you can about each applicant and their particular skills and abilities. The successful candidate for the job would then be chosen based on specifics, rather than generalities. After all, those generalities may not be true and you may be passing up an excellent candidate on the basis of a presumption.


*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.



To see how our employee test can help you bring better people on board watch this three minute video.



If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.


Hiring and the Law —
Independent Contractor or Employee?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question:  I’m hiring a bookkeeper to clean up my accounts so my accountant can do our taxes.  Can I retain her as an independent contractor or does she have to be an employee?

Answer:  To answer your question let me review your options—when you bring on someone to help you they can fit into one of a number of categories.  First is the one you identified—is the person an employee or an independent contractor?  However, there are also different types of employees and understanding what those are can also help to answer that question.

One type of employee is what’s called a “regular employee.”  Sometimes companies incorrectly call this a “permanent employee.”  A “regular employee” is one who is hired for no particular period of time, but is expected to remain employed as long as they want to be there, and as long as the employer wants to retain them.  A regular employee can be full-time or part-time.  There’s no legal definition of what is considered “full time.”  Rather, that’s something that is set by the company.  Usually, companies provide benefits for “full time” employees that are not provided for “part-time” employees.  When defining employees as full or part time, however, make sure that the definitions of these classifications work together.  For example, don’t define “full time” as someone who is regularly scheduled to work over 35 hours a week, and “part time” as someone who is regularly scheduled to work less than 20.  What happens if you hire someone who is regularly scheduled for 30 hours/week.  Are they full time or part time?

If an employee is not a “regular employee,” he or she is likely a “temporary employee” – or a temp.  Temps can be hired through a temp agency, or can be hired directly by your company.  Temps are usually brought on for a project, or to cover for an employee who is out on disability leave.  In other words, you have an idea how long they will be there, and they are not expected to remain beyond the end of the project.  Temps can be “full time” or “part time” and, as long as they are properly defined as such in your employee handbook, Temps don’t usually need to be provided with company benefits, either.

So let’s look back on the bookkeeper question—she’s there to clean up accounts so the accountant can do the taxes.  That seems like a relatively short term project, but it is not clear whether there are other projects after that one is done.  If not, this sounds like a temporary situation.  Therefore, we can rule out “regular employee” as a possible classification, leaving “temporary employee” or “independent contractor.”  If the bookkeeper has a business and hires out to various companies to do bookkeeping projects, it is possible she could be an independent contractor.  However, if she’s an individual who you will expect to be in your office Monday through Friday, 9: – 5: until the project is done, it is possible that she’s a temporary employee and not a contractor.  The difference between the two has to do with who controls the manner and method of work, how much supervision is provided, and other factors—including whether she is paid on a W-2 or 1099 basis, but that is far from the determining factor.  In short, I don’t have enough information to tell whether the bookkeeper is your temporary employee or your independent contractor, but it is very important for you to ask this question and get it resolved with your employment lawyer before bringing this person on board.


*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.



To see how our employee test can help you bring better people on board watch this three minute video.



If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.


Hiring and the Law —
Withdrawing a Job Offer

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question:  I hired an applicant for a special product launch who just told me she’s pregnant and her child is due right at the start of the key weeks of the product launch.  Can I withdraw the job offer?

Answer:  As with most things regarding employment law – maybe.  The answer is not so black and white.  On the one hand, employers can certainly require employees to be there for the project for which they were hired.  On the other, employers cannot take any actions against employees (like rescind job offers) because of an employee’s or applicant’s pregnancy.

U.S. federal law considers pregnancy (like race, religion, national origin, age etc.), to be a “protected category” which cannot be the basis for an employment decision.  Many U.S. states, and even some localities, have their own laws that prohibit employers from making decisions because an employee or applicant is pregnant.

As is the case with qualified employees or applicants who are disabled, the law also requires employers to provide reasonable accommodations to employees who are pregnant to allow them to do their job.  And such accommodations could include the provision of authorized time to be absent.

In this case, however, it appears that the employee’s absence would be right during the key time for which she was hired.  Thus, it may not be her pregnancy that is the problem–it seems to be her absence.  You need to first consider whether you would have the same reaction if the applicant told you she was going to be absent for a non-pregnancy related reason.  For example, if she told you after being hired that she was getting married and had tickets and hotel reservations for a 4-week honeymoon; or that it was her parents’ 50th anniversary and they had already bought cruise tickets for all their children during that time; or that her son was in a baseball tournament, and the key games were out of town during those weeks and she was planning on being there for her son.

Even if each of these situations would have you as angry and frustrated as learning that your selected applicant was due to give birth during your product launch, there’s still another step that it likely would be prudent for you to take.  The reason for this is that not only can an employment decision not actually be due to the fact that an employee/applicant is pregnant, but it also must not appear to be due to the pregnancy.  Thus, any action taken close in time to finding out an applicant is pregnant will look like it was due to the pregnancy–even if it was not.

Therefore, it is advisable to take steps to see whether it is reasonable to provide an accommodation in this situation.  For example, are the key actions really being done during the time the employee is due to deliver, or can she set things up ahead of time? Does she need to physically be there, or can actions be done remotely? Is she willing to work remotely while on maternity leave?  How much leave is she seeking? How long is she planning on working?  How likely is it that your launch will actually take place during the targeted dates?

It may be that after you gather all the information you determine that there simply is no reasonable accommodation that can be provided and that you need someone on the ground, 12 hours a day, up until and during the launch.  However, if you take the time to ask the questions and have a conversation with your applicant (and if you then document everything done), you will be in a better position to demonstrate that the decision to rescind the offer had nothing to do with the fact that she was pregnant.

It also may make a difference whether the applicant gave up anything (such as another job offer), or incurred any monetary obligations (such as moved from a different city; rented an apartment etc.) in order to take this job.  The state laws vary on what your company’s obligations may be when an applicant takes such actions in reliance on your job offer.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.



To see how our employee test can help you bring better people on board watch this three minute video.



If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.


Hiring and the Law —
Setting Expectations for New Employees

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I’ve got a great candidate.  How do I let her know from the start what I expect?

Answer: It’s important to keep in mind that new employees can only meet your expectations if you let the new hire know what they are.  Expectations are set for new employees in a number of ways.  As lawyers, we like to see this done so that when employees are let go for not meeting expectations and then try to claim the termination was wrongful or discriminatory, the employer can prove that the employee was (a) advised of the expectations; (b) corrected when expectations were not met; and (c) failed to meet the expectations despite correction and counseling.  Here are some steps employers can take at the outset to set employee expectations:

  • Make things clear in the job interview.  For example, ask questions along the lines of:  “while I understand emergencies happen, is there any reason you would not be able to be at your desk ready to answer the phones every day at 9:00 am?” Do not ask whether they have reliable transportation, how far away they live, or whether they have to take children to day care.  Their personal life is their business.  Ask them questions about the issues that concern you as their employer—can they be at work when you expect them to be there and perform the tasks you want them to do?
  • Prepare job descriptions.  Remember, a want ad and a job description are two different documents.  The want ad may list some of the duties and responsibilities you expect this position to perform.  However, a job description should more completely list the expectations of the job (including, of course, a catch-all statement along the lines of “and any other related duties as assigned by management” which prevents an employee from complaining that some task is “not on my job description.”)  Employees should receive and sign a job description when they start a job.
  • Have an employee handbook which outlines the basic policies you expect all employees to follow.  This handbook would have such things as your anti-discrimination and harassment policy; policies about attendance and paid time off; policies about when pay day is and how employees are expected to act at work and what they are expected to wear; policies about using the company’s computers and whether you permit cell phones at work.  In short, the employee handbook sets your expectations of your employees generally.  Have the employee sign an acknowledgement indicating that he or she received the handbook and knows it needs to be adhered to.
  • Have procedure manuals and memos that apply to specific jobs.  While you would expect a bookkeeper to already be skilled in bookkeeping, and a data entry clerk to know how to type, there will be certain aspects regarding how things are done at your company that are important to relay to your employees.  When your job descriptions are 5 pages long, you are really writing a procedure manual for a particular job.  Job descriptions are a page or two and tell what is expected.  Procedure manuals explain how to do it in more detail.  Again, have a sign-off page indicating the employee received the procedure manual for his or her job and knows it needs to be followed.

Having these documents in place will be helpful tools to assist your employees in meeting their expectations on the job.  They will also be helpful defenses from a legal viewpoint should the expectations not be met and the employee’s employment be terminated.


*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.



To see how our employee test can help you bring better people on board watch this three minute video.



If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.


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