Seyfarth Synopsis: While targeted social media ads may help employers find potential applicants with specific skill sets, inartfully crafted ads may open the door to discrimination claims, particularly in California.

We’ve already told you about the parade of horribles employers may face when using social media when making hiring decisions.

Well, more social media, more problems.

Micro-Targeting May Open The Door To Discrimination Claims

What is micro-targeting, you ask? Remember when you looked up discount flights to Hawaii, and then for the next three weeks, all of your feeds taunted you with ads for more flights, hotels, surf lessons in Kauai and hula skirts? Well, it’s kind of like that.

Social media platforms collect virtually endless volumes of personal data. This practice enables increasingly intricate advertising algorithms to push out content to very specific demographics. Suppose your business wants to advertise to the select group of people who have expressed an interest in the Montessori method, or who juggle, or who space travel and live in three specific zip codes. Micro-targeting was made for you.

Micro-targeting has expanded into the employment context, with some potentially problematic implications. One class action pending in California federal court alleges that Facebook ads targeted to people within certain age ranges are discriminatory. Similar claims could crop up in seemingly innocuous situations if, for example, an employer targeted ads to fellow graduates of his alma mater, which happened to be an all-male prep school.

As a result, employers who recruit via social media should proceed with caution if their ads in any way target (or exclude) persons in a legally protected category.

Particular Risks for California Employers

Federal law prohibits discrimination based on race, color, national origin, sex, disability, age, citizenship status, and genetic information. Of course, California is a bit different.  California extends its protections to prevent discrimination because of additional characteristics, including ancestry, marital status, sexual orientation, gender identity and expression, medical condition, political activities or affiliations, and military or veteran status. As a result, for example, an ad geared towards trying to recruit politically liberal or conservative candidates may raise peculiar legal issues in California.

Workplace Solutions

Employers need to understand their recruitment practices, and decide whether micro-targeting can ever be the right approach for them. When employers decide to use targeted ads, they should do so with relevant employment laws in mind and take steps to minimize potential exposure. Because HR managers or marketing departments may not be aware of the additional sensitivities that arise when advertising in the employment context (particularly in California), additional training on this subject may be helpful.

If you have any questions regarding your workplace’s online recruitment practices, your favorite Seyfarth attorney is only a few clicks away.

iStock_000015087680_LargeIt’s been said the best things in life are free. In California, where running a business is very expensive, an unpaid internship program might seem a perfect gift. Employers of all sizes and in virtually all industries use internships to train and identify the next generation of superstar employees. Interns frequently bring new ideas to challenging business problems and provide a regular flow of needed support staff, at a low cost or at no cost whatsoever. The benefits of internships are frequently so great that one can certainly imagine Santa staffing his busy workshop with hordes of elfish interns this time of the year.

Let Rudolph Be Your Guide

But the legal environment is not all candy canes and gum drops for unpaid or flat-rate internship programs, especially in California. The highest state and federal courts in California have not explicitly approved unpaid internships, and no California statute or regulation authorizes unpaid internships.

Some 60 years ago, the U.S. Supreme Court in Walling v. Portland Terminal Co. recognized the “special status” of interns and trainees as exempt from wage and hour laws, but Walling, alas, does not provide a clear legal standard. Apart from Walling, employers are left to follow varying sources of nonbinding “guidance” from state and federal labor agencies, and decisions from federal courts outside of California endorsing one of three multiple-factor tests: (1) the “primary beneficiary test,” (2) the ambiguous “totality of the circumstances test,” and (3) the less-than-clear “economic realities test.” Navigating this maze of tests and factors might just about require a holiday miracle!

The risks of missteps with internships are great. California has strict laws on meal and rest periods, minimum wage, and daily overtime. Many, if not most, internship programs are unpaid or involve stipends that fall below minimum wage based on hours worked, and thus do not meet California Labor Code requirements. Plaintiffs’ attorneys live on the thrill of seizing on these laws and their associated penalties to snowball employers with single-plaintiff lawsuits and class actions. For these reasons, the Abominable Snowman of wage and hour litigation appears poised to wreak further havoc on California employers using internship programs.

Don’t Shoot Your Eye Out, Kid!

So are internship programs in California akin to the often dreamed of “Red Ryder BB Gun”—a device whose potential risk outweighs the benefits? Many federal courts assess internships by asking who “primarily benefits from the relationship.” This is a good place to start when assessing your program. The DOL’s 2010 published “guidance,” including six criteria present in legal internships, deserves special attention, as it directly borrows from the U.S. Supreme Court’s only decision on the issue (Walling). Virtually all court decisions on internships, although outside of California, discuss the DOL’s factors in some degree. One important step in securing an internship from a legal Grinch is to integrate the internship with the intern’s formal education, through academic credit or a tie between technical work and classroom learning. The intern’s overall economic contribution to the business, weighed against the company’s resources dedicated to the internship program, should also remain in sight, as this is one means courts use to determine the “primary” beneficial party of the arrangement. One cannot hide the economic reality with pretty gift-wrapping. Simply labeling a job with the title “internship” is insufficient alone to ward off litigation and to keep coal out of your stocking.

The internship test involves a multitude of factors. Employers must thus consider their internship programs from every angle. Don’t simply spin the dreidel this holiday season and hope your “letter” comes up. Take action and grab the reindeer by the reins! For starters, consider including arbitration and class/collective waiver provisions in written internship agreements. That could help avoid large-scale judicial actions. Our California Workplace Solutions lawyers can also help review the numerous and varying factors involved and advise on methods to make the program more defensible from BB pellets, snowballs, or whatever comes your way this holiday season and the year to come.

By Laura Maechtlen and Kristen Verrastro

During onboarding, it would not be unusual for an employer to ask a new hire to give written authorization for deductions from their final paycheck if the employee does not return employer provided uniforms, tools, or equipment.  It also would not be unusual for employers to ask employees to supply their own equipment and tools, or clothing as a uniform when reporting for work.

In California, however, written authorization executed during the onboarding process will not suffice for reimbursement deductions at the time of termination.  Additionally in California, employers cannot require employees to supply certain clothing, tools, and equipment without reimbursement.

Uniforms

When it comes to uniforms, federal law differs from California law:

Federal law:  Federal law may allow employers to pass the costs of providing or maintaining uniforms to employees, as long as the employee’s pay would not drop below minimum wage in doing so.

California law:  California law requires that employers pay for or reimburse nonexempt employees for all costs associated with uniforms, regardless of the employees’ compensation.

What is a “Uniform”? Continue Reading On-Boarding Series: Uniforms and Tools and Equipment, Oh My! The Peculiarities Of California Law Regarding Reimbursement

By Laura J. Maechtlen and Chantelle C. Egan

It’s payday!  If the employer uses direct deposit, an employee can conveniently and immediately access wages without going to the bank (or waiting for the check to clear).  For that reason, it might seem that every new employee would want direct deposit.  But, employers must be careful.

California requires that employers obtain written authorization from the employee first.  Indeed, while California often bucks the trends of its sister states, when it comes to direct deposit authorization, California is just one of the crowd.  Alaska, Connecticut, Colorado, Delaware, Florida, Idaho, Illinois, Iowa, Maryland, Montana, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, Vermont and Wyoming all require written permission authorizing direct deposit.

Employer Tips: 

  • Obtain Written Authorization:  If your company wants to encourage direct deposit, make sure to include a written authorization in a new employee’s welcome packet.  But, keep in mind that an employee’s decision to agree to direct deposit is a voluntary one.
  • Ensure Timely Wage Payment Pending Direct Deposit Set-Up:  Once you have received a new employee’s written authorization, you are free to set up direct deposit.  As a word of caution, direct deposit may take a few pay periods to be up and running.  In the interim, be prepared to timely distribute a check for the new employee’s wages.  Just because the authorized direct deposit is not set up, the employer is not relieved of timely distributing wages.
  • Wage Statements Must Still Be Provided:  Paying by direct deposit does not remove the obligation to provide the employees’ itemized wage statements (aka “pay stubs”) under Labor Code § 226, along with the advice of deposit.

What about final wage payments? 

Inevitably, every on-boarded new employee eventually must be off-boarded.  California’s Labor Code § 213 permits employers to pay final wages via direct deposit if an employee quits or is terminated.  While this may seem like a convenient solution for paying final wages, logistically it may prove difficult, especially if an employee’s last day does not fall on a scheduled payday.  Since there are strict time requirements associated with providing a departing employee his or her final wages, the safest bet is usually to issue a timely paper check for all earned wages, to avoid any penalties.

Workplace Solutions:  Direct deposit arrangements are often the most desirable and convenient way for both employer and employee to conduct the wage payment transaction.  Just remember you can’t do it without the employee’s written consent, and other obligations, such as to paying accurately and on time remain the same.

Up next week:  Our final post in the On-Boarding Series—Uniforms and Tools.

Edited by Julie Yap

By Chantelle Egan and Laura Maechtlen

Drug testing implicates the California right to privacy, which is enshrined in our Constitution.  Therefore, employers must be careful when drug testing is a component of their onboarding process.

The General Rule  

A private employer in California can require a job applicant to pass a pre-employment drug test as a condition of employment, regardless of the job position, as long as all applicants are subject to the same requirements.  Pre-employment testing is not grounded in any suspicion that the job applicant actually abuses drugs.  Indeed, the California Supreme Court has found just the opposite.  When done correctly, pre-employment “suspicionless” drug testing does not violate the privacy rights of a job applicant because, unlike a current employee, the potential employer has not had an opportunity to observe the candidate’s work habits for indications of substance abuse.  Moreover, by applying for a job, the applicant is voluntarily choosing to reveal personal information in conjunction with the application.

Briefly noted, drug testing of job applicants is permissible as long as the following conditions are met:

  • Notice:  Applicants receive prior notice that a drug test will be required.  The job posting materials should clearly state that passing a drug test is a condition of employment.
  • Consent:  It is a best practice to have the applicant consent in writing to the fact of testing and the procedures to be used.
  • Reasonable Process:  The collection process should minimize intrusiveness and must be administered in a reasonable and reliable fashion.
  • Protected Results:  Procedural safeguards must be in place to restrict access to the test results.  Multiple candidates’ results may not be compiled together.  Nor may a particular candidate’s results be widely distributed.

Timing of the Test

Timing of drug testing is also important.  As a general rule, a pre-employment drug test should occur (and the results reviewed) prior to the date the applicant is hired and begins working for the employer.  Doing so removes any confusion regarding whether the applicant should be afforded the greater privacy protections afforded current employees.

Drug tests of current employees generally must be supported by reasonable suspicion of drug use prior to the administration of such tests.  Random testing is permissible pursuant to a federal mandate (e.g., DOT agency regulations) or if an employee occupies a safety-sensitive position in which a mis-performed duty could have irremediable harmful consequences.

Medical Marijuana In The Golden State

But what if an applicant uses medical marijuana lawfully in the State of California?  A prescription for medical marijuana may protect a person from state criminal prosecution.  But, it does not impose an obligation on an employer to accommodate a potential employee’s use of medical marijuana, even when ingested or smoked only away from the workplace.

Workplace Solutions:  Pre-employment testing is generally permitted if the rules sketched out above are followed.  However, the devil is in the details.  If you have, or are planning to have, a pre-employment testing program, make sure your notices, consents and procedures are reviewed by an expert.  And, once an employee is hired, drug testing should be limited to situations where an employer has reasonable suspicion the employee is using or under the influence of illegal drugs or alcohol while working.  Post-accident testing may be permissible in situations where an employee has caused significant damage to company vehicles, equipment, machinery or other property or a serious injury to himself/herself or another individual.  Random testing should be limited to employees who are in safety-sensitive positions.  Finally—at least so far—it is not discriminatory in the Golden State to refuse to hire an applicant or discipline an employee because he/she tests positive for marijuana, even if the individual has a medical marijuana card.  The use and possession of marijuana remains illegal under federal law.

Edited by Julie Yap

By Laura Maechtlen and Kristen Verrastro

We’ve all been in this situation: you’re trying to get to know someone better, so you ask that person a seemingly innocent question which inadvertently elicits an answer you wish you could have avoided!  If this happens in a social setting it’s unlikely to create a big problem, but if this type of scenario occurs during a hiring interview, what was intended as a friendly or innocent question could turn into a potential liability. 

Employers in California should remember that California’s anti-discrimination statutes include more protected characteristics than federal laws and many other states. Various federal laws prohibit discrimination on the bases of race; color; religion; sex; national origin; citizenship; pregnancy, childbirth, or related medical condition; age , mental or physical disability; and genetic information.  California adds to this list:  creed; ancestry; medical condition; marital status; gender; gender identity; gender expression; and sexual orientation.  Also, California prohibits asking about arrests that did not result in conviction, except you can ask about arrests for which the person is out on bail or on their own recognizance pending trial. 

Additionally, California protects employees and job applicants based on a perception that an individual possesses any of the protected characteristics, or that an individual associates with a person or group that is protected by the anti-discrimination statutes.  As such, to avoid potential liability stemming from California’s expanded statutory protections, it is important to focus your interview questions on the job and its requirements.

Employers in California should avoid these types of seemingly innocuous questions during an interview:

  • Are you married or planning to get married?  Where does your spouse work?
  • What are your plans for a family? Do you have child support obligations?
  • Have you ever changed your name? 
  • When did you graduate from high school/college? Are you a recent graduate?
  • With whom do you live?  Do you live with your parents?
  • When did you serve in the military?  For how long?  How were you discharged?
  • Where were you/your parents born?
  • In what languages are you fluent (unless required by the particular job)? What is your first language?  How did you learn a foreign language?
  • To what clubs or societies not related to work do you belong?  Do you belong to any religious organizations? 
  • Have you ever seen a counselor or psychologist for any reason? 
  • Have you had any medical problems?
  • What is it like living with        ___ (e.g., blindness, a prosthesis, fill-in-the-blank with other visually perceivable disability)?
  • How many days of work did you miss at your last job?
  • Have you ever filed an application for Workers’ Compensation?
  • Have you ever been arrested? 
  • What is your FaceBook (or any social media account) password, or content?  Why don’t you open it up for me right now so we can take a look? 

A good general rule is this: information acquired and requested through pre-employment screening should be confined to what is necessary to determine if an individual is qualified for the position.  

Happy hiring!