Job Advertising and Applications

Now, more than ever before, employers are posting job ads via social media. There are some legal concerns that one should counsel their client on when it comes to job advertising, yet many clients don’t think to seek counsel.

First, be sure that the job title and duties are in the ad and are accurate. What is the job description? FLSA and ADA are important here. Employers have to define what the essential functions of the job are so that they know if they are able to, or need to, accommodate people under ADA. The job description and essential functions are very important for ADA purposes. For FLSA purposes one needs to know if someone is entitled to overtime compensation.  If an employee is salaried and meets certain requirements, they are likely exempt from overtime. But note that having a salary is not the only consideration. One must consider the amount of salary that someone is being paid. Workers who do not earn at least $35,568 a year ($684 a week) have to be paid overtime, even if they’re classified as otherwise exempt.  Another consideration is what the person is actually doing. There are several exemptions under the FLSA (administrative, managerial, outside sales, IT, etc.). The job description helps in this regard.

Next, understanding that the employer wants to get that job ad out to as many people who may be interested, it will likely use social media. However, think about how only advertising on social media can have an adverse impact on job seeking individuals who are economically less advantaged. As such, recommending that social media be one venue but not the only one will help your client create a more diverse workforce and also protect them from being in violation of the Equal Employment Opportunity law. Note that an employer will be in violation of the EEO if employment policies (even if facially neutral) will have a “disproportionately negative effect on applicants of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the policies or practices at issue are not job-related and necessary to the operation of the business.”

When it comes to job advertisements and combating systemic discrimination, the EEOC’s Report outlines the following examples of types of practices and policies that may involve systemic issues:

• Criminal/credit background checks
• Recruitment practices such as favoring or limited to word-of mouth
• Tap-on- the-shoulder promotion policies
• Steering of applicants to certain jobs or assignments based on race or gender
• Historically segregated occupations or industries
• Job ads showing preference (“young,” “energetic,” “recent graduate,” “men only,” “women only”)
• Customer preference
• Big data-using algorithm to sort through applications
• Personality or customer service tests; physical ability or capacity tests; cognitive tests
• No rehire of retired workers or hiring of currently employed persons only

Social media advertising has another issue inherent in it, in that when an employer posts the ad, it has choices to make, such as demographic choices. If the employer chooses to have the ad appear to individuals within a certain age range, say those 18-30, it will likely be in violation of the law because it is excluding those in the protected age of 40+.

The job ad needs to have an EEO statement in it as well.

What about applications?

Job applications can contain unlawful questions without your client even thinking about it. Initial applications cannot include a box that forces someone to answer that someone has been convicted of a felony or misdemeanor. This is called “ban the box.” Numerous states have these laws. Pennsylvania does not but Philadelphia and Pittsburgh have such requirements. In Pennsylvania, we can consider convictions but not arrests so long as it is something that would correlate to the job that the person is applying for. Such questions can also run afoul of other laws.

Definitely we do not want our clients to ask for date of birth or require dates such as for graduation from high school, etc.

Employers can ask whether someone is eligible to work in the U.S. but not if someone is a U.S. citizen.

Employers cannot ask whether someone uses medical marijuana as this is a violation in many states, including Pennsylvania.

Bankruptcy can be considered during the initial hiring process in Pennsylvania, but note that an employer cannot fire someone for having a bankruptcy.