Jordan Ramis pc. Attorneys at law
Plan Ahead to Avoid the Pitfalls of Hiring
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

BY AMY ROBINSON & CAROLYN PEARSON
JANUARY 2016

While hiring new workers can be an exciting time for any business, hiring without taking the time to comply with the law can cause costly and time-consuming problems later.  While not an exhaustive list, below are five important issues to consider before beginning the hiring process.     

Remove criminal history questions from the application. *New in 2016*

As of January 1, 2016, it is unlawful in Oregon for an employer to exclude an applicant from an initial interview because of his/her criminal history, or to otherwise require a job applicant to disclose his/her criminal history on the employment application or prior to an initial interview.  It does not, however, prevent an employer from considering a candidate’s criminal history when making a hiring decision.  Instead, with limited exceptions, employers may ask about a candidate’s criminal history only at or after the initial interview, or if there is not an interview, then after a conditional offer of employment is made. 

Plan ahead to ensure your employment application is updated to reflect the changes in the law and to ensure anyone involved in your hiring process knows how to comply with all laws related to the obtaining or use of a background check on a job candidate.

Yes, you can still drug test, but know the rules before doing so.

Because certain jobs, like those in the construction industry for example, often involve the use of heavy machinery and otherwise implicate worker safety, can employers drug test potential hires?  Yes, if applied equally.  Current illegal drug use is not considered a disability under the Americans with Disabilities Act (“ADA”), and testing for illegal drugs is not considered a medical examination.  So, as long as drug testing is administered equally to all candidates for a particular type of job, this will be permissible.  However, you must be cautious because the ADA treats alcohol differently.  Testing for current alcohol use is considered a medical examination prohibited by the ADA at the pre-employment stage.  Note that all commercial drivers’ license holders must be tested.  Marijuana is legal in Oregon and Washington, but an employer can still test for it.

Be aware too that while active drug or alcohol use is not considered a disability under the ADA, there are certain protections afforded to recovering addicts.  We recommend those involved in the hiring process be sufficiently aware of this so as to avoid potentially discriminatory inquiries or discussions that could lead to liability as discussed in more detail below.  

Prepare to avoid potentially discriminatory interview questions.

At an interview, employers must be careful to avoid asking questions that might lead to a discrimination claim.  Questions that may illicit information about an applicant’s membership in a legally protected class, however innocent they may be intended, should be avoided so as not to fuel a perception that the information was a factor in the hiring decision.  This includes, questions or discussions about an interviewee’s: (1) marital status; (2) age or birthdate; (3) sex; (4) citizenship or national origin; (5) race or heritage; (6) physical or mental impairments; (7) medical history; (8) sexual orientation or gender identity; and (9) pregnancy, children, or family responsibilities.  Along those same lines, employers must be cautious to only ask whether a candidate has a high school diploma if that question is job related. 

Again, as with other hiring issues, the key is to plan ahead.  Before conducting any interviews, take the time to properly prepare and seek specific guidance, where needed, on how to tailor your questions to those topics that address an interviewee’s ability to perform the job without inadvertently or otherwise eliciting protected information.

Don’t make the mistake of hiring an “independent contractor” that is really an employee under the law

While a business can refer to an individual as an “independent contractor,” that definition is established by law.  Federal and state agencies have been increasing enforcement against employers they believe have misclassified employees as independent contractors and levy severe penalties against the hiring business.  In order to determine whether a worker is considered an employee or an independent contractor, under the law, there are several fact-specific tests that need to be considered, depending on the reason for the inquiry.  There are no less than three multi-factored tests that could apply under federal law, and as many as four that may apply in Oregon. 
 
Don’t make a costly mistake by misclassifying a worker as an independent contractor when you can avoid the costs and penalties by making sure you have gotten it right from the start. 

Be prepared to allow legally protected absences. *New in 2016* 

Finally, once an employer has hired an employee, employers must familiarize themselves with the protected leaves available to its employees.  As of January 1, 2016, Oregon employers are required to provide employees with time off if they are sick.  For employers with ten employees or more, or six or more in the Portland-metro area, that time must be paid.  In addition, employers should familiarize themselves with the other unpaid protected absences an employee might be able to have in Oregon, including family medical leave, military leave, military family leave, crime victim’s leave, domestic violence leave, bereavement leave, jury/witness duty leave, and veteran’s leave. 
 
Be aware of when an employee may be entitled to time off, and ensure that you are providing it and documenting it appropriately.  Because the protected leave laws include anti-retaliation protections, also make sure that any protected absences are treated as “no fault” absences and not otherwise counted against the employee for purposes of discipline or other employment-related decisions.