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Ask the HR Expert: Employment Law

Posted by NEHRA  July 16, 2010 09:00 AM

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Q. If a job is created that is not in current flow chart of an organization, can a job be created and filled internally without being posted for applicants? Or are there legal ramifications to not posting it?

A.
In general, there is no legal requirement that jobs be shown in an organizational chart. There also is no law that requires private employers to post positions before filling them. Some companies, however, may require posting as a matter of internal policy. And if a company fails to follow its own internal policy, an adversely affected person may seize on that noncompliance and argue that it presents evidence of an improper or sham selection procedure that really is animated by unlawful bias.

DAVID HENDERSON

Q. Our new HR manager (who reports to me) insists on group interviews – with herself and 2-3 other staffers, plus the person being interviewed. She also insists on using completely scripted questions, allowing for little wiggle room to "stretch out" and get a conversation going with candidates. I am against this approach, yet she claims it's an HR best practice. She also claims that there is a legal component to her method of interviewing - in that we can get sued if we don't ask each candidate the exact same questions. Is there any legal truth to what she claims?

A. Both you and your HR manager have valid concerns. Tthe law does not require that employers use rigid scripts to ensure that exactly the same questions are asked of each person being interviewed. It nevertheless is advisable to try as much as possible, within reason, to treat applicants in a way that allows each applicant the same opportunity to impress you positively (or negatively). The best solution would be to work toward a middle ground. You could try to achieve a balance that will provide both the fairness that the HR manager seeks and the “wiggle room” that you want.

DAVID HENDERSON

Q. I am currently interviewing at a few companies and have a question about background checks. I have a felony that was expunged in 2001, when I was 20 years old. I am able to find the charge through internet background searches. Is this something that employment background search companies will report to the potential employers? Or are they barred legally from doing so if it is expunged?

A.
State laws regarding what inquiries an employer may make concerning an applicant’s or employee’s criminal history vary widely. Similarly, the penalties for disclosure of an expunged criminal record vary from state to state. Some states, such as Virginia and Delaware, have statutes which make it unlawful for any person who acquires access to an expunged court or police record to open, review or disclose the information to another person without an order from the court. However, in Massachusetts there is no statute that provides similar penalties. If you are concerned about a background search company reporting an expunged record to a potential employer, we recommend consulting with an employment law attorney to determine if there are any laws in your state which prohibit this disclosure.

KRISTA GREEN PRATT

Q. A large corporation in MA has an employee from another country with a work visa. The employee is requesting an FMLA leave, which complies with one of the FMLA standards. The FMLA usually allows either full leave of 12 weeks or partial leave from work. Does this same standard apply to working legal immigrants for partial leave (or full leave), or will that impact their working visa status?

A.
The Family Medical Leave Act (“FMLA”) provides up to twelve weeks of unpaid leave from work for eligible employees of covered employers who are both legal citizens and legal immigrants with working visas. If a legal immigrant with a working visa takes FMLA leave, they are still considered an employee, and the taking of FMLA leave does not impact their working visa status.

KRISTA GREEN PRATT

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About NEHRA - The Voice of HR Featuring articles and resources for Human Resources / HR professional and hiring managers from the Northeast Human Resources Association (NEHRA).
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